JUDGMENT : Per Shree Chandrashekhar, J. The sole appellant has been charged under section 302 IPC for causing death of Anukaran Toppno and under section 307 IPC for attempt to murder Magdali Toppno. Charges under section 323 IPC and section 326 IPC were also framed against him. 2. In Sessions Trial No. 565 of 2007, the appellant has been found guilty on both counts and he has been sentenced to undergo RI for life under section 302 IPC and fine of Rs.50,000/-. For the offence under section 307 IPC, the appellant has been sentenced to RI for ten years and fine of Rs.20,000/-. In default of payment of fine, on both counts he has been directed to undergo further imprisonments. 3. The prosecution’s case as disclosed by the informant, namely, Magdali Toppno in her fardbeyan recorded on 24.11.2006 is that in the evening of 23.11.2006, at about 7:00 p.m., she heard hulla outside her house. The accused Deepak Toppno, who is the son of her elder brother-in-law, was hurling abuses. She has stated that Deepak Toppno was under the influence of liquor. At that time, her husband and children were at home. When her husband tried to pacify Deepak Toppno and asked him not to use abusive language, he started assaulting her husband indiscriminately and when she went there to intervene she was also assaulted by Tangi on her back, palm and right eye. The informant has claimed that due to assault by Deepak Toppno she has lost her teeth and there were scar marks on her face. Her husband was taken to RIMS by the persons from the neighbourhood, however, he was declared dead there. On the basis of her fardbeyan, Jagarnathpur P.S. Case No. 269 of 2006 was lodged against the appellant and after the investigation a charge-sheet was submitted under section 302, 323, 326 and 307 IPC. 4. During the trial, the prosecution has examined thirteen witnesses; the informant is PW-7 and the Doctor who has conducted the post mortem examination is PW-6. 5. The Doctor PW-6 has found an abrasion of the size of 4x1 c.m. on the back and lower part of left forearm of Anukaran Toppno. He has also found an incised wound of the extent of 8x3 c.m., bone deep, on the left mastoid adjoining to the left occipital region of his head. 5. The Doctor PW-6 has found an abrasion of the size of 4x1 c.m. on the back and lower part of left forearm of Anukaran Toppno. He has also found an incised wound of the extent of 8x3 c.m., bone deep, on the left mastoid adjoining to the left occipital region of his head. In the opinion of the Doctor, the injuries were ante-mortem in nature and the incised wound was caused by “very” sharp heavy cutting weapon, may be Kulhari or Dhauli. 6. Dr. T.J. Minz PW-12, who has examined the informant, has found five lacerated wounds on Magdali Toppno. Those were measuring about 1 ½” x ½”, skin deep, on upper lip, lower lip, tongue, right eye and over dorsum of right hand of Magdali Toppno, however, in the CT Scan report no infirmity was detected. 7. The prosecution has projected five witnesses PW-1, PW-2, PW-3, PW-4 and PW-5 as eye-witnesses. 8. The learned Sessions Judge has recorded a finding that PW-1, PW-2 and PW-3 are witnesses to the second part of the occurrence, that is, assault upon Magdali Toppno by the appellant. 9. PW-4 and PW-5 are child witnesses. The learned Sessions Judge has observed that before recording their evidence in the Court it was found that they were competent and able to understand. The learned Judge to test their ability has put questions to PW-4 and PW-5, who are sons of Anukaran Toppno, the deceased. 10. After the appellant assaulted Anukaran Toppno, he has not only assaulted Magdali Toppno he has scolded PW-4 and PW-5 and threatened them to kill. The learned Trial Judge has believed the testimony of PW-4 and PW-5. Having examined the records of S.T. No. 565 of 2007, we also find that PW-4 and PW-5 are reliable and trustworthy witnesses. The informant is an injured eye-witness and she has stood the test of cross-examination. 11. In the above facts, we find that PW-4, PW-5 and PW-7 have firmly established the assault upon the deceased by the appellant. 12. The learned Sessions Judge has held that the appellant is not entitled to the benefit under Exception-4 to section 300 IPC. 13. The question is whether the appellant can be convicted under section 302 IPC and sentenced to RI for life and fine. 14. 12. The learned Sessions Judge has held that the appellant is not entitled to the benefit under Exception-4 to section 300 IPC. 13. The question is whether the appellant can be convicted under section 302 IPC and sentenced to RI for life and fine. 14. We find that it is the prosecution’s own case that there was some dispute between the appellant and the deceased in respect of sharing of rent. PW-1, PW-2 and PW-3 were tenants under the deceased, however, the appellant has also been claiming a share in the rent. PW-1, PW-2 and PW-3 have deposed in the Court that while they were inside their house they have heard altercation between the appellant and Anukaran Toppno, the deceased. The appellant was heard using abusive and filthy language. When Anukaran Toppno asked the appellant not to use abusive language he picked up an axe and gave blows on his head. According to the prosecution witnesses, the appellant was holding an axe. The Doctor has stated that the injury on the left forearm of Anukaran Toppno was caused by hard and blunt substance whereas the incised wound found on him was caused by “very” sharp-cutting weapon. The above discrepancy in the prosecution’s evidence in so far as the nature of the assault weapon held by the appellant is concerned has not been explained by the prosecution. The fact that none of the witnesses has deposed that at the time of altercation the appellant was carrying an axe rules out pre-meditation. The appellant in course of altercation lost his head and assaulted Anukaran Toppno. He was so enraged that when the informant tried to intervene she was also assaulted by him. It is of some relevance that at the initial stage the informant was not even in picture. Apparently, the appellant had lost self-control by grave and sudden provocation. The manner of occurrence as described by the prosecution witnesses does not indicate that provocation was sought by the appellant or that he got voluntarily provoked as an excuse for killing Anukaran Toppno. 15. From the aforesaid facts, we find that the appellant is entitled for the benefit under Exception-1 to section 300 IPC. The manner of occurrence as described by the prosecution witnesses does not indicate that provocation was sought by the appellant or that he got voluntarily provoked as an excuse for killing Anukaran Toppno. 15. From the aforesaid facts, we find that the appellant is entitled for the benefit under Exception-1 to section 300 IPC. In our opinion, the learned Sessions Judge has committed a mistake in not considering whether the appellant is entitled to the benefit under Exception-1 to section 300 IPC, may be the defence has raised a plea of benefit under Exception-4 to section 300 IPC and not under Exception-1. Exceptions to section 300 IPC like the right of private defence can be gathered from the prosecution’s evidence also. The number of injuries caused by the appellant to Anukaran Toppno is not relevant when it is found that he is entitled for the benefit under Exception-1 to section 300 IPC; it may be relevant under Exception-4 and, therefore, repeated blow given by the appellant to Anukaran Toppno would not deprive him of the benefit under Exception-1 to section 300 IPC. 16. Viewed thus, we find that conviction of the appellant under section 302 IPC by the learned Additional Judicial Commissioner, F.T.C.VI, Ranchi in Sessions Trial No. 565 of 2007 is not sustainable and, accordingly, it is set aside. 17. The appellant is acquitted of the charge framed against him under section 302 IPC. 18. On the question of sentence, in view of assault by him on the head of Anukaran Toppno, we hold that he is liable to be convicted and sentenced to RI for ten years under section 304 Part-I IPC. 19. In view of the consistent evidence of the informant, we find that the judgment of conviction of the appellant under section 307 IPC for attempting to murder Magdali Toppno is well-founded. The injury report prepared by PW-12 has duly been proved during the trial. It has come on record that the informant was admitted in the hospital on 24.11.2006 and discharged on 02.12.2006 (para-8 of the judgment). There is some controversy on the nature of injury caused to Magdali Toppno, however, we are satisfied that the manner of occurrence as disclosed by prosecution witnesses and the number of injuries caused to her by the appellant firmly prove the charge under section 307 IPC. There is some controversy on the nature of injury caused to Magdali Toppno, however, we are satisfied that the manner of occurrence as disclosed by prosecution witnesses and the number of injuries caused to her by the appellant firmly prove the charge under section 307 IPC. Accordingly, his conviction and sentence under section 307 IPC dated 01.06.2009 passed by the learned Additional Judicial Commissioner, F.T.C.VI, Ranchi in Sessions Trial No. 565 of 2007 are affirmed. 20. However, both the sentences shall run concurrently. 21. Mr. Satish Kumar Keshri, the learned A.P.P., states that the appellant, namely, Deepak Sushil Toppno @ Deepu has already undergone more than twelve years of imprisonment. 22. Therefore, the appellant, namely, Deepak Sushil Toppno @ Deepu shall be set free forthwith, if not required in connection to any other case. 23. Cr. Appeal (D.B.) No. 611 of 2009 is partly allowed. 24. Let lower court records be transmitted to the court concerned, forthwith. 25. Let a copy of the judgment be communicated to the trial court through FAX. Appeal partly allowed.