JUDGMENT : Shree Chandrashekhar, Mrityunjay Kumar Singh is the appellant in Cr. A.(DB) No. 884 of 2013 and Sonu Singh has filed Cr.A. (DB) No. 890 of 2013. In Sessions Trial Case No. 188 of 2010 with Sessions Trial Case No.135 of 2011, Mrityunjay Kumar Singh has been convicted and sentenced to RI for life and a fine of Rs. 40,000/- under section 302 of the Indian Penal Code (in short IPC) and Sonu Singh has been convicted and sentenced to RI for life and a fine of Rs. 5,000/- under section 302/34 IPC. They have faced the trial on the charge of committing murder of Satyanand Singh in furtherance of common intention. 2. On 17.2.2010 early in the morning three brothers, namely, Satyanand Singh, Shivanand Singh and Sadanand Singh proceeded for Ranchi at 6:45 AM. They purchased tickets at Mango bus stand in Sarswati bus bearing registration No. JH 05 V 2479 with seat nos. 3,4 and 14. Before the bus started for Ranchi, Shivanand Singh and Satyanand Singh were standing at the bus stop while Sadanand Singh had occupied seat No. 14 in the bus. When the bus started moving both brothers entered the bus and found that their seats were occupied by other passengers. When they asked them to vacate the seats those passengers refused and then they asked the conductor to get their seats vacated for them. The conductor however told them to sit in the back side and when they refused and asked the conductor to refund the fare, a quarrel took place and on exhortation of Mrityunjay Kumar Singh, Sonu Singh brought iron rod and lathi and they started assaulting them. Satyanand Singh suffered serious injury on the back of his head and he was taken to MGM Hospital for treatment. He was thereafter taken to Tata Main Hospital, Jamshedpur where at about 12:30 PM the fardbeyan of Sadanand Singh was recorded by the officer-in-charge of Sitaramdera Police Station. On the basis of the fardbeyan of Sadanand Singh, Sitaramdera PS Case No. 19 of 2010 was registered against Mrityunjay Kumar Singh and Sonu Singh under sections 341/323/325/307 and 379 read with section 34 IPC. In course of treatment Satyanand Singh died on 19.02.2010 and accordingly the offence under section 302 IPC was incorporated in the report. On the basis of the fardbeyan of Sadanand Singh, Sitaramdera PS Case No. 19 of 2010 was registered against Mrityunjay Kumar Singh and Sonu Singh under sections 341/323/325/307 and 379 read with section 34 IPC. In course of treatment Satyanand Singh died on 19.02.2010 and accordingly the offence under section 302 IPC was incorporated in the report. After the investigation a charge-sheet was submitted on 16.05.2010 against Sonu Singh and in the supplementary charge-sheet dated 28.02.2011 Mrityunjay Kumar Singh was sent up for trial. Both the accused persons were put on trial on different dates by framing, similar charges under section 302/34 IPC against them. Sessions Trial Case No.188 of 2010 which was started against Sonu Singh was amalgamated with Sessions Trial Case No. 135 of 20 11 after three witnesses were examined in both the sessions trial. Shivanand Singh and Sadanand Singh are the eye-witnesses. Dr. Vibhakar Kumar who has conducted the post-mortem examination of Satyanand Singh was examined separately in both the sessions trial before the amalgamation. In the trial the prosecution has examined nine witnesses out of whom PW-5, PW-6 and PW-8 who are the independent witnesses were declared hostile. PW-4, Ashok Kumar Dalmia who is the officer-in-charge of Sitaramdera Police Station is the first Investigating Officer and PW-9, Raj Kishore Pandey is the second Investigating Officer. PW- 4 has examined the place of occurrence which was shown to him by Treta Yadav, Mukesh Mehta and Hawaldar Parmeshwar Rai. He has recorded statements of Shivanand Singh, Sadanand Singh and other witnesses. PW-7, Hawaldar Parmeshwar Rai was in the barrack at Government bus stand on 17.02.2010. He on the information that a person was assaulted and lying injured outside the boundary wall of the bus stand had gone there and seen Satyanand Singh in injured condition. The doctor has found three abrasions and two contusions on the dead-body of Satyanand Singh. On the occipital region of the scalp there was a stitched wound of the size of five centimeter, with five stitches. In the opinion of the doctor the injuries were ante-mortem in nature and caused by hard and blunt substance. In his estimation time elapsed since death was 12 to 24 hours from the post-mortem examination and the death was caused due to head injury. 3. In the opinion of the doctor the injuries were ante-mortem in nature and caused by hard and blunt substance. In his estimation time elapsed since death was 12 to 24 hours from the post-mortem examination and the death was caused due to head injury. 3. The learned Additional Sessions Judge-II, Jamshedpur has held that there IS no doubt on identification of the accused persons and Test Identification Parade was not conducted in this case because the accused persons were named in the First Information Report. The learned Trial Judge has further held that the evidence of the prosecution witnesses is consistent and the prosecution has proved that the occurrence took place at the gate of the Government bus stand. After analyzing the materials on record and noting the judgment in "Chenda v. State of Chhattisgarh (2013) 12 SCC 110 ", the learned trial Judge has found that this is a case of murder and, accordingly, held Mrityunjay Kumar Singh guilty under section 302 IPC and Sonu Singh guilty under section 302/34, IPC. 4. In both the sessions trial, Shivanand Singh has been examined as PW-l. His testimony in both the sessions trial is similar except minor differences. He has deposed in the Court that on 17.2.2010 at 05:30 AM he proceeded on a Tempo for bus stand with Satyanand Singh and Sadanand Singh, his brothers, for going to Ranchi. They purchased three tickets with allotted seat nos. 3,4 and 14 in the bus and his younger brother Sadanand Singh occupied seat no. 14 while he and his brother Satyanand Singh were waiting outside the bus. When the bus started moving they entered the bus but found their seats occupied by other passengers. They asked the conductor to get their seats vacated for them but he told them to take the back seats which they refused and asked for refund of the fare. Mrityunjay Kumar Singh threatened them saying that they would be run over by the bus and refused to refund money. In the meantime the bus snailed towards Government bus stand and Mrityunjay Kumar Singh asked the khalasi to bring lathi and exhorted to kill. Sonu Singh when started a quarrel with Satyanand Singh, then Sadanand Singh intervened. Thereafter both the accused persons started assaulting Satyanand Singh with lathi and rod. In the meantime the bus snailed towards Government bus stand and Mrityunjay Kumar Singh asked the khalasi to bring lathi and exhorted to kill. Sonu Singh when started a quarrel with Satyanand Singh, then Sadanand Singh intervened. Thereafter both the accused persons started assaulting Satyanand Singh with lathi and rod. Satyanand Singh suffered a head injury and he was rushed to MGM Hospital from where he was referred to Tata Main Hospital for treatment. Sadanand Singh is the informant of this case. He has been examined separately in both the sessions trial. In both the sessions trial, he has tendered similar testimony. Except minor inconsistency in his evidence, nothing could be elicited from him in the cross-examination by the defence. 5. The testimony of Shivanand Singh and Sadanand Singh is cogent, clear and convincing and admits no doubt on the prosecution case that the appellants have assaulted Satyanand Singh. From their evidence it would appear that they have stated that they were also assaulted by the appellants. They were not examined by a doctor and no injury. report was produced to show that they were also beaten in the occurrence, however, on such ground their evidence cannot be discarded. A witness may exaggerate the version of the occurrence when he is examined in the Court but mere exaggeration is not sufficient to disbelieve the witness. Both brothers have consistently spoken about the role played by the appellants and there is no reason to think that they would falsely implicate unknown persons for murder of their brother. 6. Mr. Chaturvedy has contended that the appellants were strangers and no Test Identification Parade was conducted by the Investigating Officer to establish their identity. Under section 9 of the Indian Evidence Act the facts establishing identity of an accused are relevant but as held in "Malkhansingh and others v. State of MP (2003) 5 SCC 746 ", the Investigating Officer is not under a statutory duty to hold Test Identification Parade. In "Matru @ Girish Chandra v. State of Uttar Pradesh, (1971)2 SCC 75 ", the Hon'ble Supreme Court has held that identification test is primarily meant for the purpose of helping the Investigating Agency. In "Matru @ Girish Chandra v. State of Uttar Pradesh, (1971)2 SCC 75 ", the Hon'ble Supreme Court has held that identification test is primarily meant for the purpose of helping the Investigating Agency. It is well-settled that identification of an accused in the Court by the witness is a substantive evidence and if testimony of a witness does not suffer from inherent improbability or inconsistency the evidence tendered by a witness must be considered above board. The entire episode at the bus stand and inside the bus has taken about one hour. Both the eye-witnesses had sufficient time to observe the physical "features of the appellants who are the conductor and khalasi of the bus. In the middle of the quarrel Mrityunjay Kumar Singh has called Sonu Singh and name' of the conductor was made known to the witnesses by the persons present there. It is a normal tendency that after the incident and, that too, when their brother was seriously injured Shivanand Singh and Sadanand Singh would have immediately inquired about name of the accused persons. The identity of the appellants was never in doubt and they were named in the First Information Report. 7. On the evidences laid by the prosecution, involvement of the appellants in assault upon Satyanand Singh is proved and the prosecution has proved that both of them have assaulted Satyanand Singh. 8. Mr. A.K. Chaturvedy, the learned counsel for the 'appellants has contended that there was no motive to commit murder of Satyanand Singh and the appellants who were strangers had definitely no intention to cause death of Satyanand Singh. 9. Motive alone is not a determinative factor in a criminal trial, though it may play an important role in a case based on circumstantial evidence. It is true that in the beginning the appellants had no motive to commit murder of Satyanand Singh and it is also true that one would not commit murder merely because a passenger has asked for refund of fare. But then, as observed by the Hon'ble Supreme Court in "Atley v. State of UP AIR 1955 SC 807 " if clear motive is not established by the prosecution that would not weaken its case. But then, as observed by the Hon'ble Supreme Court in "Atley v. State of UP AIR 1955 SC 807 " if clear motive is not established by the prosecution that would not weaken its case. The consistent evidence of Shivanand Singh and Sadanand Singh narrating the entire occurrence in a consistent manner leaves no room for doubt on involvement of the appellant, may be there was no motive to commit murder of Satyanand Singh. 10. Before examining the second limb of the argument of the learned counsel for the appellants, we would observe that intention of a person can be gathered from his spoken words as well as the conduct. The nature of injury caused, the weapon held and whether the injury was caused on vital or non-vital part of the body, are the factors which have to be considered to find out intention of the accused. 11. Both the appellants were holding different weapons. Shivanand Singh has deposed in Sessions Trial Case No. 188 of 2010 that Mrityunjay Kumar Singh exhorted Sonu Singh to bring lathi and kill (Nikalo Lathi Aur Maro Paisa Mangne Wala Hua Hai, Jan Se Mar Do). In Sessions Trial Case No. 135 of 2011 he has stated that Mrityunjay Kumar Singh called Sonu Singh to bring lathi etc. from the bus and assault them. In both the sessions trial Sadanand Singh has stated that Mrityunjay Kumar Singh called Sonu Singh to get lathi and rod to assault them. It is not in dispute that Mrityunjay Kumar Singh has assaulted Satyanand Singh with iron rod on the back of his head and the other injuries found on his person may be attributable to Sonu Singh. The incident has occurred on a trivial issue. The quarrel has started for vacating the seats reserved by the brothers in the bus and finally a fight with the appellants had ensued. There was no premeditation on the part of the appellants and from the prosecution evidence it appears that their intention was to beat Satyanand Singh. 12. The intention of the appellants not to cause death of Satyanand Singh appears from the injuries caused to him. Three abrasions of the minor nature were found on the person of Satyanand Singh. There was no premeditation on the part of the appellants and from the prosecution evidence it appears that their intention was to beat Satyanand Singh. 12. The intention of the appellants not to cause death of Satyanand Singh appears from the injuries caused to him. Three abrasions of the minor nature were found on the person of Satyanand Singh. These abrasions might have been caused during scuffle and the learned trial Judge has also proceeded on the premise that Sonu Singh may have caused only the other two injuries on Satyanand Singh. A contusion of the size of "19 cm x 1 cm" over the lateral aspect of the right arm and another contusion of the size of "8 cm x 2 cm" on the middle of the chest are attributable to Sonu Singh. The assault on the chest of Satyanand Singh can be said to be serious in nature but the other one on the right arm was not grievous in nature. Apart from the facts that Sonu Singh has inflicted a hit on the middle of the chest and Mrityunjay Kumar Singh has not inflicted a second blow with iron rod, Dr. Vibhakar Kumar has not rendered any opinion on the head injury. He has stated in the Court that the nature of injury which was covered by five stitches on the occipital region of scalp of Satyanand Singh can be explained by the doctor who has treated him. Satyanand Singh has died two days after the occurrence and he was taken to MGM Hospital and Tata Main Hospital but what was the treatment given to him was not disclosed during the trial. The nature, gravity and extent of the injury of the stitched wound thus can not be ascertained. 13. From the aforesaid evidence, it cannot be gathered that Mrityunjay Kumar Singh had the intention as envisaged under clause Firstly to section 300 of the Indian Penal Code. The death has occurred after two days and it has not been brought on record that the stitched wound was such that in all probability it would have caused death and, therefore, such knowledge as envisaged under clause Fourthly to section 300 of the Indian Penal Code can also not be imputed to Mrityunjay Kumar Singh. 14. The death has occurred after two days and it has not been brought on record that the stitched wound was such that in all probability it would have caused death and, therefore, such knowledge as envisaged under clause Fourthly to section 300 of the Indian Penal Code can also not be imputed to Mrityunjay Kumar Singh. 14. In "Mithu Singh v. State of Punjab (2001) 4 SCC 193 ", the Hon'ble Supreme Court has observed that to substantiate a charge under section 302 IPC with the aid of section 34 IPC it must be shown that the criminal act complained against was done by one of the accused persons in furtherence of the common intention of both. 15. In the aforesaid factual scenario, we are of the opinion that the prosecution has failed to establish charge under section 302 IPC against Mrityunjay Kumar Singh. The charge under section 302/34 IPC against Sonu Singh is also not proved and, accordingly, their conviction for the aforesaid offences is set-aside. 16. Now coming to the question of nature of offence, we find that the learned trial Judge has taken note of the judgment in "Chenda" but failed to apply the ratio laid down by the Hon'ble Supreme Court. From a discussion in paragraph no. 29 of the judgment in Sessions Trial Case No. 188 of 2010 with Sessions Trial Case No. 135 of 2011, we find that on the ground that the appellants have taken undue advantage of the situation the learned trial Judge has declined to extend the benefit under Exception-4 to section 300 IPC. The learned trial Judge has held so only for 'the reason that when Satyanand Singh started moving back to save himself, Mrityunjay Kumar Singh hit him on the back of his head. However, we find that the learned trial Judge has also held that "the culpable homicide was caused without premeditation in a sudden fight in heat of passion upon a sudden quarrel for not refunding the bus fare…….”. Still, the appellants were held guilty for causing death of Satyanand Singh. The learned trial Judge has failed to apply the aforesaid circumstances with the parameters indicated in Explanation-4 and committed an error in not applying the ratio of "Chenda" case. 17. In "Chenda v. State of Chhattisgarh (2013) 12 SCC 110 ", the Hon'ble Supreme Court has held thus: "23. The learned trial Judge has failed to apply the aforesaid circumstances with the parameters indicated in Explanation-4 and committed an error in not applying the ratio of "Chenda" case. 17. In "Chenda v. State of Chhattisgarh (2013) 12 SCC 110 ", the Hon'ble Supreme Court has held thus: "23. Having regard to the parameters indicated in Gurmukh Singh case, the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused." 18. In the "Surain Singh v. State of Punjab (2017) 5 SCC 796 ", the Hon'ble Supreme Court has held thus: "14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage ". 19. In view of what has been established by the prosecution during the trial and the findings recorded by the learned trial Judge in paragraph No. 29 of the judgment under challenge, we hold that Mrityunjay Kumar Singh is liable to be convicted and sentenced to RI for seven years under section 304 Part-II IPC. Sonu Singh was carrying a lathi and assuming that the abrasion injuries were caused to Satyanand Singh during the scuffle at least two injuries are attributable to him, Both are contusions; (i) on the right anm and (ii) another on the chest. Lathi is said to be a dangerous weapon and contusion injury of the size of "8 cm x 2 cm" on the middle of the chest would definitely be grievous in nature. In "Kishan Chand v. State of Punjab, AIR 1994 SC 32 ", the fatal blow was given by garasa by one accused and there were minor injuries which were said to have been caused by others. The Hon'ble Supreme Court has held that the other accused persons are liable to be held guilty for their individual acts. Taking note of the injuries caused by Sonu Singh to Satyanand Singh, we hold that he is liable to be convicted and sentenced to RI for three years under section 325 IPC. 20. Mrs. The Hon'ble Supreme Court has held that the other accused persons are liable to be held guilty for their individual acts. Taking note of the injuries caused by Sonu Singh to Satyanand Singh, we hold that he is liable to be convicted and sentenced to RI for three years under section 325 IPC. 20. Mrs. Vandana Bharti, the learned APP states that the appellant, namely, Mrityunjay Kumar Singh in Cr.A.(DB) No. 884 of 2013 has remained in custody for more than twelve years, with remission. The appellant, namely, Sonu Singh in Cr.A.(DB) No. 890 of 2013 has remained in custody for more than three years, with remission. 21. Accordingly, the appellant, namely, Mrityunjay Kumar Singh III Cr.A.(DB) No. 884 of 2013 shall be set free forthwith, if not wanted in connection to any other case. The appellant, namely, Sonu Singh in Cr.A.(DB) No. 890 of 2013, who is on bail, stands discharged of liability of the bail bonds furnished by him. 22. In the result, Criminal Appeal (D.B.) No. 884 of 2013 and Cr. Appeal (D.B.) No. 890 of 2013 are partly allowed, in the above terms. 23. LA. No. 5574 of 2020 stands disposed of. 24.Let lower Court records be sent to the Court concerned forthwith. 25. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.