JUDGMENT : K.P. Deo, J. Heard, Mr. Rajesh Kumar, learned Amicus Curiae and learned counsel for the State, Mr. Satish Kumar Keshri, learned Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 01.12.2008 and order of sentence dated 03.12.2008, passed by learned Sessions Judge, Simdega, in Sessions Trial No. 121 of 2007, whereby the sole accused has been convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded sentence of imprisonment for life and also fine of Rs.2000/- payable to the widow of the deceased, if any. 3. The prosecution case is based upon the fardbeyan of informant, Garjan Singh (P.W.-7) recorded by A.S.I., Shashi Bhushan Das on 20.07.2007 at 13.00 Hrs. at Benkuta, Khariatoli. The informant has stated that he is resident of Bano, District – Simdega and doing on agriculture for livelihood. The informant has stated that he is giving his statement to the Police Officer of Bano Police Station at village Khariatoli near the house of Most. (widow) Sukro Soren. The informant has stated that on 19.07.2007 (Thursday) at around 8.00 P.M., his brother Fagua Singh @ Bishambhar Singh (deceased) aged about 30 years, went in search of labourers at around 8.00 P.M. at Khariatoli but did not return in the night. The informant thought that his brother has stayed in the house of his friend as earlier also, when he used to go in search of labourers, he used to remain at Khariatoli and in the morning used to return with labourers. The informant has alleged that on 20.07.2007 in the morning at 5-6 A.M., Sukro Soren (P.W.1), wife of Late Bhimsen Soren, resident of Khariatoli came to her house and disclosed that your brother, Fagua Singh @ Bishambhar Singh came to her house in the previous night at 10-11 P.M. and was sitting in the courtyard and was talking for labourers. In the meantime her brother-in-law, namely, Fagu Soreng, (Accused/Appellant) came after talking liquor. Some altercation took place between Fagu Soreng, (accused) and Fagua Singh@ Bishambhar Singh (deceased). Consequently, Fagu Soreng assaulted brother of the informant on his head, by means of a wooden piece kept in the wooden log at the verandah, causing injury, due to which Fagua Singh died at the spot. Some altercation took place between Fagu Soreng, (accused) and Fagua Singh@ Bishambhar Singh (deceased). Consequently, Fagu Soreng assaulted brother of the informant on his head, by means of a wooden piece kept in the wooden log at the verandah, causing injury, due to which Fagua Singh died at the spot. The informant has stated that she wanted to raise brawl but her brother-in-law pushed her inside the house and locked the door from the outside, as such she could not inform anybody and that is the reason, she is informing him in the morning. On the basis of information disclosed by Sukro Soren (P.W.1), the informant along with family members and co-villagers went to the house of Sukro Soren and saw the dead-body of his brother, Fagua Singh in the courtyard. Thereafter, informant and co-villagers, Shankar Singh and Chandrabhan Singh went in-search of Fagu Soreng, (accused) but by that time he had fled away. 4. On the basis of fardbeyan of the informant, Garjan Singh (P.W.7) recorded in presence of Shankar Singh, the police has registered Bano P.S. Case No.32 of 2007, dated 20.07.2007, under Section 302 of the Indian Penal Code against the sole accused, Fagu Soreng (appellant). 5. After completion of investigation, the police has submitted charge sheet vide no. 48 of 2007, dated 09.08.2007, under Section 302 of the Indian Penal Code against the sole accused, Fagu Soreng. 6. The cognizance of the offence has been taken vide order dated 04.09.2007 and the case has been committed to the court of sessions vide order dated 07.09.2007. 7. The charge has been framed against the accused, Fagu Soren (Fagu Soreng) under Section 302 of the Indian Penal Code, on 22.11.2007. The charge has been read over and explained to the accused in Hindi, to which the accused has denied and claimed to be tried, thus the accused was put on trial. 8. The prosecution, in order to prove its case, has examined altogether nine prosecution witnesses and adduced eight prosecution exhibits and one material exhibit, which have been brought on record and marked as exhibit without any objection from the defence. Sukro Soren, sister-in-law of the accused Fagu Soreng, has been examined as P.W.1 an eye witness. Who has stated that the occurrence has been committed in her presence in the verandah of this witness. Sukro Soren, sister-in-law of the accused Fagu Soreng, has been examined as P.W.1 an eye witness. Who has stated that the occurrence has been committed in her presence in the verandah of this witness. This witness has given information to the informant, Garjan Singh, who has been examined as P.W.7. Biren Lugun, a hearsay witness, has been examined as P.W.2, he has seen the dead-body of Fagua Singh at the verandah of Sukro Soren. Soma Lugun is also an hearsay witness, who has been examined as P.W.3, to whom Sukro Soren (P.W.1) has disclosed about the occurrence and thereafter, she went to the house of Sukro Soren and found the dead-body of Fagua Singh at the verandah of Sukro Soren and accused, Fagu Soreng had absconded. Chandrabhan Singh (P.W.4) is also an hearsay witness. In the morning he went to house of Sukro Soren, which is the place of occurrence and saw the dead-body of Fagua Singh at the verandah, where a wooden piece with blood stain was lying. The police came there, seized the blood-stain wooden piece and prepared the seizure list on which, this witness has put his signature, which has been proved and marked as exhibit-1. Sukhlal Lohra (P.W.5), another co-villager, an eye witness to the occurrence, who after hearing some sound went to the place of occurrence and saw that Fagu Soreng has assaulted Fagua Singh with lathi, who has fallen down and thereafter, this witness under fear fled away. Dr. Christ Anand Xaxa, Medical Officer, has been examined as P.W.6 and on 20.07.2007, he has conducted the post-mortem of the deceased, Fagua Singh, S/o Firan Singh of Bintuka, P.S. Bano, District-Simdega, aged about 30 years and found as follows:- (a) On General examination the body was average built. Rigor mortis on both upper and lower limbs found but not decomposed. Both eyes and mouth closed. (b) On external examination he found one lacerated injury size 3”x1/4” at right temporal region with bleeding from both nostrils. (c) On internal examination he found haematoma at the same site of right temporal region between meninges and brain matter. There was fracture of right temporal bone. (d) Both lungs were pale, left heart chamber empty right chamber with little blood. Stomach with undigested food, gases. Small intestine with digested food, gases. Large intestine with faecal matter and gas. Liver, spleen, kidney were pale. Urinary bladder empty. 2. There was fracture of right temporal bone. (d) Both lungs were pale, left heart chamber empty right chamber with little blood. Stomach with undigested food, gases. Small intestine with digested food, gases. Large intestine with faecal matter and gas. Liver, spleen, kidney were pale. Urinary bladder empty. 2. Injury was ante-mortem in nature and time elapsed since death within 24 hours. 3. Injury may be caused by hard blunt object. It may be wood piece. 4. Death caused due to cardio respiratory arrest by head injury. Doctor has opined that injury is possible on falling on hard surface. He has found only injury on the dead body. The post-mortem report is in his pen and signature, which has been proved and marked as exhibit-2. Garjan Singh, informant of the case and elder brother of the deceased has been examined as P.W.7. This witness has reiterated his statement, as made out in the fardbeyan and has categorically stated that he was informed by Sukro Soren (P.W.1) about the occurrence and when he went there, he saw dead-body of Fagua Singh (deceased) lying on the verandah of Sukro Soren (P.W.1), but Fagu Soreng, accused/appellant was not there. This witness has proved his signature on the fardbeyan, which has been marked as exhibit-3 and also proved the signature of witness to the fardbeyan, Shankar Singh, which has been marked as exhibit-3/1. The signature of this witness on the seizure list of the wooden piece prepared by the police has been proved and marked as exhibit-4. This witness during cross-examination has stated that place of occurrence is a tola(Mohalla) comprising of twelve houses and the house of Sukro Soren is adjacent to the house of Fagu Soreng, accused. Birsa Soreng @ Shanika Soreng has been examined as P.W.8, but he has been declared hostile by the prosecution. Shashi Bhushan Das, A.S.I. of Police and investigating officer of the case, has been examined as P.W.9 and he has proved the fardbeyan, which has been marked as exhibit-5 and also proved the formal F.I.R., which has been marked as exhibit-6. The original copy of the seizure list prepared by him has been proved and marked as exhibit-7 and the seized wooden piece brought by him in the court has been proved and marked as Material Exhibit-M. This witness has categorically stated that during investigation, he has arrested the accused, Fagu Soreng on 21.07.2007. The original copy of the seizure list prepared by him has been proved and marked as exhibit-7 and the seized wooden piece brought by him in the court has been proved and marked as Material Exhibit-M. This witness has categorically stated that during investigation, he has arrested the accused, Fagu Soreng on 21.07.2007. This witness has proved the inquest report of the deceased, which has been marked as exhibit-8 and the dead-body along with inquest report has been sent for postmortem examination to Simdega Hospital. This witness has further stated that after completion of the investigation on the direction of superior officers, he has submitted charge-sheet against the accused, Fagu Soreng under Section 302 of the Indian Penal Code. 9. After closure of prosecution evidence, statement of the accused has been recorded under section 313 Cr.P.C., on 12.11.2008, where the accused has claimed himself to be innocent and denied about the death of Fagua Singh @ Bishmbhar Singh because of assault made by him, but no defence witness or exhibit has been brought on record by the defence to falsify the prosecution case. 10. After hearing learned counsel for the parties and on perusal of materials available on record, learned trial court has held the accused Fagu Soreng guilty and convicted him for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded imprisonment for life and also fine of Rs.2000/- payable to the wife of the deceased, if any. The impugned judgment of conviction and order of sentence passed by the learned trial Court has been assailed by the appellant through panel lawyer of the Jharkhand State Legal Services Authority, Mr. Rajesh Kumar as Amicus Curiae. 11. Heard, Mr. Rajesh Kumar, learned Amicus Curiae. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has further submitted that except witness, Sukro Soren (P.W.1), none of the prosecution witnesses have claimed themselves to be an eye-witness to the occurrence. Learned Amicus Curiae has further submitted that the witness, Sukro Soren (P.W.1) might have killed the deceased (Fagua Singh) and has falsely implicated the accused, Fagu Soreng, who is none else than her own brother-in-law so as to grab the entire landed property. Learned Amicus Curiae has further submitted that the witness, Sukro Soren (P.W.1) might have killed the deceased (Fagua Singh) and has falsely implicated the accused, Fagu Soreng, who is none else than her own brother-in-law so as to grab the entire landed property. Learned Amicus Curiae has further submitted that from perusal of evidence brought on record, it appears that there is delay in lodging the First Information Report as for whole of the night, no information was given to the Village chawkidar or to the Police Station nor any information was given to the informant (P.W.7-Garjan Singh), rather from perusal of the materials brought on record, the occurrence was committed on 19.07.2007 (Thursday) at around 10.00-11.00 P.M. and information was given by Sukro Soren (P.W.1) to the informant (P.W.7-Garjan Singh) in the morning at 5.00-6.00 A.M. On 20.07.2007. Learned Amicus Curiae has further submitted that independent witnesses examined in this case have not claimed that Fagu Soreng is the person who has assaulted in their presence nor any of the witnesses have seen accused/appellant, Fagu Soreng at the place of occurrence or fleeing away from the place of occurrence. Learned Amicus Curiae has further submitted that even if the entire evidence led by the prosecution are taken into account or admitted then also conviction of the accused/appellant, Fagu Soreng under Section 302 I.P.C. cannot sustain in the eyes of law as there was no mens-rea and if any such occurrence as alleged by the P.W.1, has been committed then the same has been committed after altercation. Learned Amicus Curiae has buttressed his argument by submitting that there is no intention or motive on the part of the accused/appellant, Fagu Soreng to commit the same, as such, in absence of any mens-rea, he cannot be convicted under Section 302 of the Indian Penal Code. Learned Amicus Curiae has drawn attention of this Court towards Exception 4 of Section 300 I.P.C., which reads as follows :- “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 offender having taken undue advantage or acted in a cruel or unusual manner”. Learned Amicus Curiae has further submitted that from perusal of the materials brought on record and the injury sustained by the deceased (Fagua Singh), at best the accused/appellant, Fagu Soreng may be convicted under Section 304 Part II of the Indian Penal Code. Learned Amicus Curiae has further buttressed his argument by submitting that as per the prosecution case while the deceased (Fagua Singh) was sitting in verandah of sister-in-law of the accused, Sukro Soren where accused, Fagu Soreng came after taking liquor, then some altercation took place between accused/appellant Fagu Soreng and deceased, Fagua Singh and out of passion, the accused, Fagu Soreng assaulted Fagua Singh by means of a wood piece taken out from the wooden log kept at the verandah of Sukro Soren (P.W.1) due to which Fagua Singh sustained injury on the head and died at the spot. The entire prosecution has not been able to satisfy the Court, that there was any animosity between the parties or accused/appellant, Fagu Soreng had any motive or intention to kill the deceased (Fagua Singh). Under the aforesaid circumstances, conviction of the accused/appellant, Fagu Soreng if not set aside may be modified to Section 304 Part II of the Indian Penal Code and the period of sentence may be modified to period already undergone by the accused as he is in custody since 20.07.2007. 12. Heard, Mr. Satish Kumar Keshari, learned Additional Public Prosecutor for the State. Learned counsel for the State has vehemently argued the case and submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court after consideration of the materials available on record. Learned counsel for the State has further submitted that Sukro Soren (P.W.1) is sister-in-law of the appellant/accused, Fagu Soreng and the defence has not brought anything on record to prove that Sukro Soren has any animosity with accused, Fagu Soreng. Sukro Soren (P.W.1) has been cross-examined, but nothing has been elucidated to dispel the prosecution case though son of Sukro Soren, namely, Birsa Soreng, has been examined as P.W.8, a child of the age of 10 years, has been declared hostile by the prosecution. The defence has not given any suggestion to any of the witnesses including Sukro Soren (P.W.1) about his false implication. The defence has not given any suggestion to any of the witnesses including Sukro Soren (P.W.1) about his false implication. From perusal of the record, it appears that Sukro Soren (P.W.1) is an eye-witness to the occurrence, who was locked in the room by the accused and in the morning after coming out from the room, she went to the house of informant and informed about the occurrence on the basis of which informant (Garjan Singh - P.W.7) came to the house of Sukro Soren and saw the dead-body of his brother, Fagua Singh. Biren Lugun has been examined as P.W.2 and he has also supported the case of the prosecution and has stated that he was also informed by P.W.1 (Sukro Soren). Similar is the statement of P.W.3 (Soma Lugun). Chandra Bhan Singh (P.W.4) has stated that in the morning accused/ appellant, Fagu Soreng came to his house and disclosed that he has assaulted Fagua Singh by a piece of wood and killed him and on the basis of which this witness went to the place of occurrence and saw the dead-body of the deceased (Fagua Singh) and a blood-stained piece of wood which was seized by the Police in his presence and his signature on the seizure list has been proved and marked as Exhibit-1. Sukhlal Lohra (P.W.5) is another witness who went to the place of occurrence after hearing the brawl and saw Fagua Singh lying on the ground because of assault made by Fagu Soreng by means of lathi and thereafter this witness has fled away under fear. The Medical Officer (P.W.6-Dr. Christ Anand Xaxa) has proved injury on the person of the deceased and proved the post-mortem report as Exhibit-2. Learned counsel for the State has submitted that Medical Officer (P.W.6) has opined that the external injury is because of assault made by a piece of wood causing injury of the size 3”x1/4” at the right temporal region with bleeding from both nostrils and because of this injury, haematoma has occurred at the same site of right temporal region between meninges and brain matter. The time elapsed since death at the time of post-mortem is within 24 hours and injury may be caused by hard and blunt substance. The informant (Garjan Singh-P.W.7), brother of the deceased has reiterated his statement as made in the fardbeyan and supported the prosecution case. The time elapsed since death at the time of post-mortem is within 24 hours and injury may be caused by hard and blunt substance. The informant (Garjan Singh-P.W.7), brother of the deceased has reiterated his statement as made in the fardbeyan and supported the prosecution case. The defence has cross-examined him at length, but nothing has been elucidated by the defence to dispel the prosecution case so as to give any benefit of doubt to the accused/appellant, Fagu Soreng. Learned counsel for the State has submitted that the Police Officer who has recorded the fardbeyan has also supported the case of the prosecution and after completion of investigation, has submitted the charge-sheet. The exhibits have been brought on record by the prosecution including the material exhibit without any objection from the defence, as such, this Court may not interfere with the impugned judgment of conviction and order of sentence and the same may be upheld and affirmed by this Court. 13. Heard, Mr. Rajesh Kumar, learned amicus curiae and learned counsel for the State, Mr. Satish Kumar Keshari, learned Additional Public Prosecutor and perused the materials available on record, including the First Information Report, framing of the charge, evidence of all the nine prosecution witnesses, eight prosecution exhibits, one material exhibit and statement of accused recorded under Section 313 Cr.P.C, as well as impugned judgment of conviction and order of sentence. From perusal of fardbeyan of the informant (Garjan Singh-P.W.7), it appears that he is not an eye-witness to the occurrence, but admittedly he is brother of the deceased-Fagua Singh, whose deadbody was found at the verandah of Sukro Soren (P.W.1). The deceased went in search of labourers and did not return in the night, the informant thought that his brother will return with labourers in the morning as there was precedence of the same, but in the morning, Sukro Soren (P.W.1) came to the house of informant and disclosed about the occurrence. She has categorically stated that deceased (Fagua Singh) was sitting in her verandah and was talking about the labourers when her brother-in-law, Fagu Soreng came there in an intoxicated condition and some altercation took place between them due to which Fagu Soreng has assaulted Fagua Singh with a piece of wood kept in wooden log at the verandah causing head injury leading to the death of Fagua Singh. Sukro Soren (P.W.1) could not inform anybody about the occurrence as the accused, Fagu Soreng has locked her in the house and in the morning as soon as she came out of house, she went to the house of informant (P.W.7-Garjan Singh) and informed him about the occurrence. Biren Lugun (P.W.2) has also supported the case of the prosecution, as the person who went to the place of occurrence and saw the dead-body of Fagua Singh lying at the verandah of Sukro Soren and Fagu Soreng had fled away. Similar statement is of Soma Lugun (P.W.3) who went and saw the deadbody of Fagua Singh at the verandah of Sukro Soren (P.W.1), as disclosed by Sukro Soren, but Fagu Soreng had fled away. Chandra Bhan Singh (P.W.4) has categorically stated that Fagu Soreng came to his house in the morning on 20.07.2007 and disclosed that he has assaulted and killed, Fagua Singh. On the basis of disclosure made by Fagu Soreng, he went to the place of occurrence and saw the dead-body of Fagua Singh and wood log stained with blood was lying there, which was seized by Police and on the seizure list he has put his signature. This witness has fully supported the prosecution case and as such, the extra judicial confession of the accused, Fagu Soreng coupled with the corroborative evidence such as recovery of wooden piece and deadbody of deceased found at courtyard of Sukro Soren (P.W.1) are on record. Sukhlal Lohra (P.W.5) is the neighbour who went to the place of occurrence after hearing some sound and saw Fagua Singh lying on the ground and Fagu Soreng has assaulted him by means of lathi and the corresponding injury, has been found by Dr. Christ Anand Xaxa (P.W.6), who has been proved the post-mortem report as Exhibit-2. The Investigating officer (P.W.9) has also supported the case of the prosecution and has produced the seized wooden log before the Court which has been marked as Material Exhibit-M. From the materials brought on record, it appears that the defence has not brought on record any material to suggest that accused/appellant, Fagu Soreng has any animosity or no motive in committing the crime, rather the materials which have been brought on record, do suggest that Fagu Soreng has assaulted Fagua Singh (deceased) by means of lathi (wooden piece). It appears that the said weapon i.e. lathi (a piece of wood) was kept at the verandah and in the heat of passion on a sudden exchange of words or quarrel such occurrence took place. The prosecution has also brought on record that Fagu Soreng came in an intoxicated condition when Fagua Singh was talking about the labourers and due to altercation, Fagu Soreng has assaulted Fagua Singh. The motive has not been proved by the prosecution, but death of Fagua Singh has rightly been proved by the prosecution caused by assault made by Fagu Soreng beyond all shadow of reasonable doubt, as the medical evidence also corroborated the ocular evidence of Sukro Soren (P.W.1). The external injury, as stated above and mentioned in Exhibit-2 shows single assault on the head of the deceased (Fagua Singh) by means of hard and blunt substance causing injury of 3”x1/4” on the right temporal region lacerated with bleeding from both nostrils and haematoma was found during internal examination on the same site of right temporal region between meninges and the brain matter. There was fracture of right temporal bone. This injury is consequence of the external injury, as such, considering the prosecution evidence particularly P.W.1 (Sukro Soren) and P.W.4 (Chandra Bhan Singh) before whom the accused has confessed his guilt, the medical evidence of Dr. Christa Anand Xaxa (P.W.6), evidence of investigating officer (P.W.9-Shashi Bhusan Das), evidence of the informant (P.W.7-Garjan Singh) supported by evidence of P.W.2 (Biren Lugun) and Soma Lugun (P.W.3), this Court is of the opinion that the prosecution has been able to prove its case beyond all shadow of reasonable doubt regarding culpable homicide of Fagua Singh, but the evidence brought on record also shows that there was no intention of committing murder. It appears from the evidence brought on record that on the spur of moment, in a heat of passion the accused/appellant, Fagu Soreng has assaulted on the head of deceased (Fagua Singh) without any premeditation or motive and as such, the conviction of accused/ appellant, Fagu Soreng is modified from Section 302 I.P.C. to Section 304 Part II I.P.C., as the case comes under exception (iv) of Section 300 I.P.C. 14. Accordingly, we are of the opinion that conviction of the accused/appellant, Fagu Soreng be modified and thus, it is modified from Section 302 I.P.C. to Section 304 Part II I.P.C. and sentence from imprisonment for life with a fine of Rs.2,000/- to the period already undergone. Consequently, the appellant is directed to be released forthwith, if not wanted in any other case. 15. Before parting with this judgment, we appreciate the valuable assistance rendered by Mr. Rajesh Kumar, learned amicus curiae in disposal of the present Criminal Appeal. The Member Secretary, Jharkhand State Legal Services Authority is directed to release admissible legal remuneration to the learned Amicus Curiae within four weeks from the date of production of a copy of the judgment along with an application. 16. Let L.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith.