ORDER : 1. In his fardbeyan which was recorded on 22.05.2003, at about 11:00 a.m. at village-Gopalpur, the informant has named Tarun Bhakat @ Tarun Kumar Bhakat, Manoj Kr. Bhakat @ Manoj Bhakat, Guru Charan Bhakat, Prajapati Bhakat and Abhinay Bhakat as the assailants of his son, namely, Dharnidhar Bhakat. On the basis of his fardbeyan, Jadugora P.S. Case No. 26 of 2003 was registered against them for the offences punishable under sections 341, 342 and 302/34 of the Indian Penal Code. After the investigation a charge-sheet was submitted and the appellants have faced the trial on the above charges. 2. In Sessions Trial No. 289 of 2003, the appellants have been convicted and sentenced to R.I. for life and fine of Rs. 5000/- under section 302/34 of the Indian Penal Code, R.I. for one month under section 341 of the Indian Penal Code and R.I. for one year under section 342 of the Indian Penal Code the sentences are to run concurrently. 3. The appellant, namely, Prajapati Bhakat has preferred Criminal Appeal (DB) No. 525 of 2015 which, on his death during pendency of the criminal appeal, has abated vide order dated 13.05.2016. 4. During the trial, the prosecution has examined eight witnesses; the informant is PW-3. 5. The prosecution has projected the informant and his wife as the eye-witnesses. 6. Mrs. Neeta Krishna, Mrs. Sadhna Kumar and Ms. Shilpi Sandil, the learned Amicus have appeared for the appellants in this batch of criminal appeal; Criminal Appeal (DB) No. 100 of 2012 by the appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat, Criminal Appeal (DB) No. 350 of 2011 by the appellant, namely, Guru Charan Bhakat and Criminal Appeal (DB) No. 522 of 2015 by the appellant, namely, Abhinay Bhakat. 7. Mr. Sanjay Kumar Tiwari, the learned counsel has also appeared for the appellants in Criminal Appeal (DB) No. 100 of 2012. 8. Bhakat @ Manoj Bhakat, Criminal Appeal (DB) No. 350 of 2011 by the appellant, namely, Guru Charan Bhakat and Criminal Appeal (DB) No. 522 of 2015 by the appellant, namely, Abhinay Bhakat. 7. Mr. Sanjay Kumar Tiwari, the learned counsel has also appeared for the appellants in Criminal Appeal (DB) No. 100 of 2012. 8. The learned counsels have submitted that: (i) the place of occurrence is not established, (ii) the inquest report was not prepared at the place of occurrence, (iii) PW-2 and PW-3 are not the eye-witnesses, (iv) the conduct of PW-2 and PW-3 in not rescuing their son is unnatural and (v) the investigating officer has not collected the necessary information, seized the material articles and recorded statement of the independent witnesses and, therefore, there is substantial doubt on the prosecution story that the appellants have committed murder of Dharnidhar Bhakat. 9. Mrs. Neeta Krishna, the learned Amicus has referred to the judgments in Raju @ Balachandran and Others vs. State of Tamil Nadu, (2012) 12 SCC 701 , Prem Singh vs. State of Haryana, (2013) 14 SCC 88 , State of A.P. vs. Naragudem Papireddy and Others, (2004) 9 SCC 14 and Madho Singh vs. State of Rajasthan, JT 2002 (8) SC 305 in support of her contentions. The learned Amicus has contended that failure of the prosecution to examine Kiran Bhakat who could have been the star witness has created substantial doubt on complicity of the appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat in the crime. 10. Mrs. Sadhna Kumar, the learned Amicus who appears for the appellant, namely, Guru Charan Bhakat has contended that the prosecution has failed to establish that Guru Charan Bhakat has participated in the occurrence and death of Dharnidhar Bhakat has been caused in furtherance of common intention shared by Guru Charan Bhakat. The learned Amicus has relied on the decision in Suresh and Another vs. State of U.P. (2001) 3 SCC 673 . 11. Ms. Shilpi Sandil, the learned Amicus appearing for the appellant, namely, Abhinay Bhakat has contended that testimony of PW-2 and PW-3 on assault by Abhinay Bhakat by an iron rod is not consistent and atleast in the first part of the occurrence he has not assaulted Dharnidhar Bhakat with iron rod is admitted by PW-2 in paragraph no. 17 of her testimony. 12. Mr. 17 of her testimony. 12. Mr. Arun Kumar Pandey, the learned A.P.P. has, however, contended that the overt acts of the appellants as reflected in the evidence of the prosecution witnesses would establish that they have shared common intention to commit murder of Dharnidhar Bhakat and, therefore, their conviction under section 302/34 of the Indian Penal Code in Sessions Trial No. 289 of 2003 is well founded. 13. According to the prosecution the occurrence has taken place in the early morning of 22.05.2003. The fardbeyan of the informant has been recorded at about 11:00 a.m. in the village of the informant and a First Information Report was lodged at 13:30 p.m. There is some controversy on the place and time of preparation of the inquest report but it was prepared on the same day is not disputed and the post-mortem examination over the dead body of Dharnidhar Bhakat has been conducted the next day is reflected from the post-mortem report prepared by Dr. Lalan Chaudhary who has been examined as PW-7. The aforesaid documents which have been prepared contemporaneously on the events which have taken place in quick succession may eliminate false implication of the appellants in the crime but before reaching to a final conclusion testimony of the prosecution witnesses PW-1, PW-2, PW-3, PW-5 and PW-6 are relatives of the informant and PW-1 and PW-6 are the co-villagers, who as contended by Mrs. Neeta Krishna, the learned Amicus would be the interested witnesses has to be examined with due care and caution as indicated by the Hon'ble Supreme Court in Raju alias Balachandran case. The informant has stated in his fardbeyan that his son was assaulted by the appellants at the lane (kulhi) and when he had gone there with his wife to save his son they were also assaulted by them. Thereafter, all the accused persons have taken Dharnidhar Bhakat inside the house of Guru Charan Bhakat and closed the door from inside and assaulted him. In the court also he has stated that when his son was going to take bath Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat and their father, namely, Guru Charan Bhakat came there and started assaulting his son. His wife has narrated a similar story about the occurrence. In the court also he has stated that when his son was going to take bath Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat and their father, namely, Guru Charan Bhakat came there and started assaulting his son. His wife has narrated a similar story about the occurrence. She has also stated that when she and her husband tried to intervene they were assaulted by the accused persons and thereafter her son was taken to the house of Guru Charan Bhakat where he was confined. 14. In their evidence, PW-2 and PW-3 have not imputed any specific overt act by Guru Charan Bhakat. The appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat are his son and Prajapati Bhakat and Abhinay Bhakat are his nephew. The judgment in Sessions Trial No. 289 of 2003 reflects that he was aged about 70 years. There is no evidence on participation of Guru Charan Bhakat in the occurrence sharing common intention to commit murder of Dharnidhar Bhakat. In Surendra Chauhan vs. State of M.P. (2004) 4 SCC 110, the Hon'ble Supreme Court has observed that the essence of section 34 of the Indian Penal Code is simultaneous consensus of minds of the persons participating in the criminal action to bring about a particular result and before section 34 of the Indian Penal Code is applied two factors must be established: (i) common intention and (ii) participation of the accused in commission of the offence. But, to rope in an accused with the aid of section 34 of the Indian Penal Code the prosecution must prove that the overt act or acts of one or more of the accused persons was done in furtherance of the common intention of all [Refer Rambilas Singh vs. State of Bihar, AIR 1989 SC 1593 ]. In Surendra Chauhan case, the Hon'ble Supreme Court has observed that the existence of common intention can be inferred from the attending circumstances of the case and conduct of the parties. It has come in the prosecution's evidence that the first part of the occurrence has taken place near the lane (kulhi) which is in front of the house of Guru Charan Bhakat. What appears to us from the evidence led by the prosecution during the trial is that Tarun Bhakat @ Tarun Kumar Bhakat has advanced Rs. It has come in the prosecution's evidence that the first part of the occurrence has taken place near the lane (kulhi) which is in front of the house of Guru Charan Bhakat. What appears to us from the evidence led by the prosecution during the trial is that Tarun Bhakat @ Tarun Kumar Bhakat has advanced Rs. 300/- as loan to Dharnidhar Bhakat and he was not able to return the entire money and when a quarrel has taken place Guru Charan Bhakat also came out from his house and that is how the prosecution has proved his presence at the place of occurrence. However, the prosecution has failed to establish that Guru Charan Bhakat has shared common intention with his sons and nephews to commit murder of Dharnidhar Bhakat. The evidence led by the prosecution on participation of Guru Charan Bhakat lacks foundational facts to apply section 34 of the Indian Penal Code. We are of the opinion that may be he has intervened during the quarrel but he is not liable to be convicted for murder of Dharnidhar Bhakat or under section 341 of the Indian Penal Code or under section 342 of the Indian Penal Code and, accordingly, his conviction on the aforesaid charges is set-aside. 15. Accordingly, Guru Charan Bhakat who is the appellant in Criminal Appeal (DB) No. 350 of 2011 is acquitted of the criminal charges framed against him in Sessions Trial No. 289 of 2003. 16. Mr. Arun Kumar Pandey, the learned A.P.P. states that he is on bail and, therefore, Guru Charan Bhakat shall stand discharged of liability of the bail-bonds furnished by him. 17. Criminal Appeal (DB) No. 350 of 2011 is allowed. 18. PW-2 and PW-3 have claimed that they have seen the accused persons assaulting their son. The incident has taken place in the early morning of 22.05.2003. Their presence in their house at the time of occurrence is quite natural. It was mid-summer and they have deposed in the court that their son was going to take bath and when he reached near the lane (kulhi) which is in front of the house of Guru Charan Bhakat, Tarun Bhakat @ Tarun Kumar Bhakat, Manoj Kr. Bhakat @ Manoj Bhakat and Guru Charan Bhakat; complicity of Guru Charan Bhakat in the occurrence has not been proved, came outside their house and assaulted their son. Bhakat @ Manoj Bhakat and Guru Charan Bhakat; complicity of Guru Charan Bhakat in the occurrence has not been proved, came outside their house and assaulted their son. Abhinay Bhakat and Prajapati Bhakat have also joined them subsequently. On participation of Tarun Bhakat @ Tarun Kumar Bhakat, Manoj Kr. Bhakat @ Manoj Bhakat, Prajapati Bhakat and Abhinay Bhakat, PW-2 and PW-3 have remained firmed during their cross-examination. From their evidence the prosecution has proved presence and participation of these four persons in the occurrence. Minor inconsistency or embellishment in their testimony would not create a doubt on complicity of these four accused persons in the occurrence. By now, it is well accepted that in every case there may be some inconsistency in the evidence of the prosecution witnesses. A witness who is examined in the court after several months or few years is not expected to paint a graphic picture of the incident which has happened on the fateful day and, that too, with mathematical precision. PW-4, PW-5 and PW-6 are not the eye-witnesses but they have corroborated the prosecution in large parts on death of Dharnidhar Bhakat and information to them by the informant. 19. However, we are of the opinion that conviction of Tarun Bhakat @ Tarun Kumar Bhakat, Manoj Kr. Bhakat @ Manoj Bhakat and Abhinay Bhakat; Guru Charan Bhakat has been acquitted of the criminal charges framed against him and Prajapati Bhakat has passed away and, accordingly, Criminal Appeal (DB) No. 525 of 2015 has abated, under section 302/34 of the Indian Penal Code is not proper. 20. From the prosecution's evidence what appears to us is that they are entitled for the benefit under Exception-4 to section 300 of the Indian Penal Code. 21. Section 300 of the Indian Penal Code provides that culpable homicide is murder if the act by which death has been caused falls under any one of the four clauses under section 300 of the Indian Penal Code, but at the same time it also provides that culpable homicide is not murder if the offending act falls under anyone of the five exceptions under section 300 of the Indian Penal Code. The essential ingredients under Exception-4 to Section 300 of the Indian Penal Code are: (i) the accused has acted without pre-meditation, (ii) he has committed the offence in a sudden fight and in the heat of passion, (iii) he has not taken undue advantage and (iv) he has not acted in a cruel and unusual manner. In Manoj Kumar vs. State of Himachal Pradesh, (2018) 7 SCC 327 , the Hon’ble Supreme Court has observed as under: “27. There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: (i) that the incident happened without premeditation. (ii) in a sudden fight. (iii) in the heat of passion. (iv) upon a sudden quarrel. (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. 28. It may be relevant to note that in Sridhar Bhuyan vs. State of Orissa, it was held as under: (SCC pp. 396-397, Paras 7-8) “........There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender’s 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 have worked themselves into a fury on account of the verbal altercation in the beginning.” 22. 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 have worked themselves into a fury on account of the verbal altercation in the beginning.” 22. During her cross-examination PW-2 has stated that in the first part of the occurrence which has taken place at the lane (kulhi) the accused persons have inflicted five lathi blows on her son. She has stated that her son was not assaulted by the accused persons on his head. Thereafter, her son was taken inside the house of Guru Charan Bhakat. She claims that her son was crying but after sometime she did not hear cry of her son. PW-3 who is the informant has not stated about assault on the vital part of the body of Dharnidhar Bhakat. In paragraph no. 28 of his cross-examination, presumably on a suggestion by the defence, he has admitted that the iron rod was not pierced in abdomen of his son. 23. On such fact, Ms. Shilpi Sandil, the learned Amicus has contended that assault by Abhinay Bhakat has not been proved by the prosecution. Mrs. Neeta Krishna, the learned Amicus has contended that non-examination of any villager though the investigating officer has stated that there are around 30-40 houses near the house of Guru Charan Bhakat has created substantial doubt on complicity of the accused persons. 24. PW-2 has stated in her cross-examination that several villagers from the vicinity had come at the place of occurrence and she had sent information to Chowkidar but he did not come there and PW-3 has also stated that due to fear nobody came there. PW-2 and PW-3 have stated that when they heard hulla then they came out from their house and while so, it can be reasonably inferred that they have not seen how the occurrence has started. Mrs. Sadhna Kumar, the learned Amicus has rightly contended that the prosecution has failed to establish origin of the occurrence. The prosecution witnesses have stated that before the occurrence the accused persons were on good visiting terms. The informant is also related to the accused persons; Guru Charan Bhakat is maternal uncle of the informant. Mrs. Sadhna Kumar, the learned Amicus has rightly contended that the prosecution has failed to establish origin of the occurrence. The prosecution witnesses have stated that before the occurrence the accused persons were on good visiting terms. The informant is also related to the accused persons; Guru Charan Bhakat is maternal uncle of the informant. Since how the quarrel has begun has not been seen by any prosecution witness and there was money dispute between Tarun Bhakat @ Tarun Kumar Bhakat and Dharnidhar Bhakat, it may be so that when Dharnidhar Bhakat had arrived near the house of the accused persons a quarrel has started. It was a trivial matter and the accused persons were not armed with any deadly weapon. Though it is alleged that subsequently Prajapati Bhakat and Abhinay Bhakat have arrived at the place of occurrence armed with iron rod but it is also reflected from testimony of PW-2 and PW-3 that they have not made a murderous attack on Dharnidhar Bhakat. On such facts, we find that the accused persons have assaulted Dharnidhar Bhakat with premeditation is not proved by the prosecution. Dr. Lalan Chaudhary who has been examined as PW-7 has conducted the post-mortem on 23.05.2003 at 10.15 a.m. and found the following injuries on Dharnidhar Bhakat: “(A) Lacerated Wound: (1) 2.5 cm x 0.5 cm x muscle deep 2.5 cm x 2.5 cm x muscle deep over right leg in front. (B) Abrasion: (1) Multiple abrasions small sized over both knees, right thigh outer aspect and upper part, left thigh outer and upper part, both elbows. (2) 3 cm x 2.5 cm over left forearm outer aspect. (C) Contusion: (1) Over both lips. (2) Back of left thigh. Front of left thigh, right lower limb and both upper limb. On Dissection: Skull - Whole scalp contused, whole brain contused. Neck - right cavicular region contused. Larynx and tracheal mucosa reddened and contains froth. All limbs and back of chest massively contused.” 25. In the opinion of the doctor, the injuries were ante-mortem in nature and caused by hard and blunt substance. To this extent, observation of the doctor corroborates the prosecution story of assault by the accused persons with danda and fists. But the nature of injuries caused to Dharnidhar Bhakat does not reflect intention of the accused persons to commit his murder. To this extent, observation of the doctor corroborates the prosecution story of assault by the accused persons with danda and fists. But the nature of injuries caused to Dharnidhar Bhakat does not reflect intention of the accused persons to commit his murder. All injuries to him were caused on the lower and middle part of his body and except injury no. 1 which is a lacerated wound on his right leg other injuries are abrasions and contusions. The abrasions have been found over his thigh, knee and elbows. The doctor has detected contusions on cervical region, larynx and trachea but extent and impact of the aforesaid contusions have not been described by the doctor. From such injuries on Dharnidhar Bhakat it is not proved that the accused persons have taken undue advantage or acted in a cruel or unusual manner. In this context it is also important to record that according to the prosecution atleast two of the accused persons, namely, Prajapati Bhakat and Abhinay Bhakat were armed with iron rod but no serious injury has been caused to Dharnidhar Bhakat on the vital parts of his body [Refer Nandlal vs. State of Maharashtra, (2019) 5 SCC 224 ]. 26. In the aforesaid state of affairs, we hold that the appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat, Manoj Kr. Bhakat @ Manoj Bhakat and Abhinay Bhakat are liable to be convicted under section 304 Part II of the Indian Penal Code. On question of sentence, we are of the opinion that in view of the nature of injuries caused to Dharnidhar Bhakat the appellants, above-named, are liable to be sentenced to R.I. for Five years [Refer Bunnilal Chaudhary vs. State of Bihar, (2006) 10 SCC 639 ]. 27. The conviction and sentence inflicted upon the appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat, Manoj Kr. Bhakat @ Manoj Bhakat and Abhinay Bhakat under section 302/34 of the Indian Penal Code are set-aside. However, their conviction under section 341 and section 342 of the Indian Penal Code is confirmed. 28. The appellants, above-named, are convicted and sentenced to R.I. for Five years under section 304 Part II of the Indian Penal Code. 29. Mr. Arun Kumar Pandey, the learned A.P.P. states that the appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. 28. The appellants, above-named, are convicted and sentenced to R.I. for Five years under section 304 Part II of the Indian Penal Code. 29. Mr. Arun Kumar Pandey, the learned A.P.P. states that the appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat has remained in custody for more than ten years and the appellant, namely, Abhinay Bhakat has remained in custody for over seven years. The learned A.P.P. further states that Abhinay Bhakat is on bail. 30. Accordingly, the appellant, namely, Abhinay Bhakat shall stand discharged of liability of the bail-bonds furnished by him. 31. The appellants, namely, Tarun Bhakat @ Tarun Kumar Bhakat and Manoj Kr. Bhakat @ Manoj Bhakat in Criminal Appeal (DB) No. 100 of 2012 shall be set free forthwith, if not wanted in connection to any other case. 32. In the result, Criminal Appeal (DB) No. 100 of 2012 and Criminal Appeal (DB) No. 522 of 2015 are partly allowed in the aforesaid terms. 33. We record our appreciation for the able assistance rendered by Mrs. Neeta Krishna, Mrs. Sadhna Kumar and Ms. Shilpi Sandil, the learned Amicus, who have prepared notes on prosecution's evidence and written submissions. 34. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 35. Let the lower-court records be sent to the court concerned forthwith.