JUDGMENT : Shree Chandrashekhar, J. Hirodih PS Case No. 49 of 1993 was lodged on the basis of the fardbeyan of Basudeo Yadav which was recorded at about 8:15 AM on 18.06.1993 against the accused persons, namely, Triloki Mahato, Hukum Mahto, Rama ‘Mahato, Tribhuan Mahto, Ahmad Mian and Khalil Mian. After the investigation a charge-sheet was submitted against Triloki Mahato, Hukum Mahto, Rama Mahato and Tribhuan Mahto and charges under section 302/34 of the Indian Penal Code for causing death of Jhari Mahto and section 307/34 of the Indian Penal Code for attempt to cause death of Jagdish Mahto were framed against them on 10.11.1997. Hukum Mahto and Tribhuan Mahto have been separately charged under section 302 of the Indian Penal Code for causing death of Jhari Mahto and Hukum Mahto has been charged separately under section 307 of the Indian Penal Code for attempt to cause death of Jagdish Mahto. About ten years thereafter, a charge under section 302/34 of the Indian Penal Code was also framed against them for causing death of Jagdish Mahto, vide order dated 25.10.2007. 2. During the trial, the prosecution has examined nineteen witnesses; Ladho Devi and Gorwa Devi who were declared hostile have been examined again after an additional charge under section 302/34 of the Indian Penal Code was framed. 3. Dr. B.P. Singh has conducted the post-mortem examination and found injuries caused to Jhari Mahto by sharp-cutting weapon as well as hard and blunt substance. He has also found injuries to Jagdish Mahto caused by hard and blunt substance. He has observed that some of the injuries to Jhari Mahto and Jagdish Mahto were caused on vital parts of the body. Dr. Kaushlendra Kumar has examined Meena Devi and found three lacerated wounds on her person which were simple in nature. 4. On the basis of the materials laid before him, the learned District & Sessions Judge-I, Giridih Jias held that the occurrence has taken place due to a land dispute; both parties were claiming ownership over the same piece of land and; a major part of the land in question in Plot No. 1812 was in possession of the prosecution party. He has further held that PW-1, PW-5, PW-11 and PW-12 are not eye-witnesses, however, PW-8, PW-10, PW-18 and PW-19 are reliable and trustworthy witnesses. He has further held that PW-1, PW-5, PW-11 and PW-12 are not eye-witnesses, however, PW-8, PW-10, PW-18 and PW-19 are reliable and trustworthy witnesses. The prosecution has proved the place of occurrence, the time of occurrence and motive behind the occurrence and, accordingly, Hukum Mahto, Rama Mahato and Tribhuan Mahto were held guilty under section 148 and section 302/34 of the Indian Penal Code. 5. Mr. Arwind Kumar, the learned counsel for the appellants submits that in view of the injuries caused to three appellants on admitted facts the appellants can at best be convicted and sentenced under section 304 Part II of the Indian Penal Code. 6. To fortify his submission, the learned counsel has relied upon the judgment in "Darshan Singh v. State of Punjab" reported in (2010) 2 SCC 333 . 7. Per contra, Mr. Vineet Kumar Vashistha, the learned APP has submitted that intention of the appellants to cause death of Jhari Mahto and Jagdish Mahto can be gathered from observations of the doctor who has conducted post-mortem examination that some of the injuries to the victims were found on vital parts of the body. 8. The case of the prosecution is that on 18.06.1993, in the early morning Triloki Mahato was ploughing the field and his sons armed with deadly weapon along with two other persons, namely, Ahmad Mian and Khalil Mian were guarding the field. When Jhari Mahto who was passing through the field objected the accused persons started assaulting him. On his raising cries his family members rushed there and they were also assaulted by the accused persons. 9. PW-9, Dr. B.P. Singh has conducted post-mortem examination on 18.06.1993 and found the following injuries on Jhari Mahto: "I. Incised wound on mid of scalp 2 ½" x ½ " x scalp deep; II. Lacerated wound on frontal region of scalp 2"x ¼" x skin deep; III. Lacerated wound on back right side 2 ¾ " x ¼" x muscle deep; IV Bruise with swelling on right forearm upper part 3" x ¾"; V Scratch on left elbow 1" x ¼". 10. The injuries found on Jhari Mahto were ante-mortem in nature and caused by sharp-cutting as well as hard and blunt substance. Lacerated wound on back right side 2 ¾ " x ¼" x muscle deep; IV Bruise with swelling on right forearm upper part 3" x ¾"; V Scratch on left elbow 1" x ¼". 10. The injuries found on Jhari Mahto were ante-mortem in nature and caused by sharp-cutting as well as hard and blunt substance. The injury No.1 was caused by sharp-cutting weapon such as talwar or bhujali; other injuries were caused by hard and blunt substance such as lathi and; the injuries were on vital parts of the body. PW-9 has rendered an opinion that death of Than Mahto was caused due to the above ante-mortem injuries caused on the vital parts of his body. 11. PW-9 has also conducted post-mortem examination over the dead body of Jagdish Yadav and found the following injuries: "I. Bruise with swelling on upper part of right forearm and arm 2" x ¾ " and 3"x ¾"; II. Bruises four in number on front of chest with swelling of varying sizes. 2" to 4" x ½" to ¾"; III. Abrasion on back left side 1 " x ¼"; IV Abrasion on right thigh with swelling ¾" x ¼" V Abrasion on right leg with swelling ½" x ¼"; VI. Penetrating wound with lacerated edges three in number. " 12. In the opinion of the doctor the injuries were ante-mortem in nature; injury Nos. I to V were caused by hard and blunt substance; injury No.VI was caused by blunt pointed object and; cause of death was head injury. 13. PW-14, Dr. Kaushlendra Kumar has examined Meena Devi on 18.06.1993 and found the following lacerated injuries on her person: "1. Lacerated wound on the left side of scalp 3" x ½" x bone deep with bleeding. II. Lacerated wound on the left forearm blow elbow on ulnar aspect ½" x 1/6" x skin deep with bleeding; III. Lacerated wound on the left palm ¼" x 1/6" x skin deep with blood clot." 14. Churaman Mahto PW-1, Niro Ravidas PW-3, Girja Devi PW-5 and Uttim Ravidas PW-13 were declared hostile. Bhuneshwar Das PW-2, Basudeo Rai PW-4, Shanti Devi PW-11 and Aasho Ravidas PW-12 are hearsay witnesses and; Lalan Prasad Sinha PW-15, Nageshwar Rai PW-16 and Binod Kumar Rai PW-17 are formal witnesses. 15. Churaman Mahto PW-1, Niro Ravidas PW-3, Girja Devi PW-5 and Uttim Ravidas PW-13 were declared hostile. Bhuneshwar Das PW-2, Basudeo Rai PW-4, Shanti Devi PW-11 and Aasho Ravidas PW-12 are hearsay witnesses and; Lalan Prasad Sinha PW-15, Nageshwar Rai PW-16 and Binod Kumar Rai PW-17 are formal witnesses. 15. The learned Sessions Judge has observed that PW-1, PW-4, PW-5 and PW-11 arrived at the place of occurrence after the incident was over. When they reached there by that time Jhari Mahto had died but they have seen Jagdish Mahto and his wife Meena Devi in injured condition. 16. PW-6, Gorwa Devi was examined on 13.08.1999 and at the request of the prosecution she was declared hostile. Ladho Devi, PW-7, who was examined on 30.08.1999 was also declared hostile. About seven years thereafter they were again examined during the trial and this time they have supported the prosecution case. 17. PW-10, the informant and PW-8, wife of Jagdish Mahto, are eye-witnesses and they are intimately related to the deceased persons. Therefore, their evidence is required to be examined with a greater degree of care and caution and as observed by the Hon'ble Supreme Court in "Dinesh Kumar v. State of Rajasthan" reported in (2008) 8 SCC 270 merely because they are related to the deceased their evidence cannot be discarded. At the same time while scrutinizing their testimony this has to be kept in mind that they would not shield the real culprit and falsely implicate innocent persons. It is also true that minor inconsistency, contradiction, exaggeration and embellishment in the evidence of a prosecution witness is quite natural and on the ground of minor inconsistency or exaggeration his evidence cannot be discarded altogether. In "State of Rajasthan v. Smt. Kalki and Anr" reported in (1981)2 SCC 752 the Hon'ble Supreme Court has observed that in the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. 18. The testimony of PW-18 and PW-19 has come in for severe criticism inasmuch as they were declared hostile and after cross-examination by the prosecution they were discharged, but about seven years thereafter they were again examined during the trial and this time they have supported the prosecution case. 18. The testimony of PW-18 and PW-19 has come in for severe criticism inasmuch as they were declared hostile and after cross-examination by the prosecution they were discharged, but about seven years thereafter they were again examined during the trial and this time they have supported the prosecution case. From the records we do not find that the accused persons had challenged the order granting permission to the prosecution to examine PW-18 and PW-19 and of course there is no doubt on powers of the Court to examine a witness under section 311 CrPC at any stage of the trial, in our opinion, credibility of PW-18 and PW-19 on account of their previous conduct would stand substantially eroded. They are rural women who at the first instance did not support the prosecution and were declared hostile. After about 7 years thereafter they have again turned up and this time supported the prosecution substantially. The evidence of a witness in the Court is primary evidence and in this case evidence of PW-18 and PW-19 is substantial evidence, but in a situation like the present one the Court has to be very cautious. Both of them have claimed that they were assaulted by the accused persons, however, like PW-8 and PW-10 they were not sent for treatment and in fact both of them have admitted in their cross-examination that they did not get any treatment for the injuries received by them in the occurrence. Above all, PW-8 and PW-10 have not deposed in the Court that when they had gone to the place of occurrence and tried to intervene Gorwa Devi and Ladho Devi also came there, tried to save Jhari Mahto and were assaulted by the accused persons. On such facts, in our opinion, it would not be safe to rely on the evidence of PW-18 and PW-19 and their testimony must be excluded from consideration. 19. Basudeo Yadav, the informant has stated that he has seen the accused persons ploughing his field and when his father objected to their ploughing the field they started a quarrel with his father and when he and his wife came to intervene they were also assaulted by them. He has further stated that he has suffered injury in the incident and was assaulted by Tribhuan Mahto by sword and Hukum Mahto by farsa. He has further stated that he has suffered injury in the incident and was assaulted by Tribhuan Mahto by sword and Hukum Mahto by farsa. Meena Devi, who is wife of Jagdish Mahto, has stated that on hearing hulla when she arrived at the place of occurrence she found quarrel between both sides and was also assaulted by the accused persons when she tried to intervene. 20. In Vadivelu Thevar v. State of Madras, reported in AIR 1957 SC 614 the Hon'ble Supreme Court has held that a witness can be wholly reliable, partly reliable or wholly not reliable. We find that PW-8 and PW-10 are wholly reliable witnesses in so far as presence and participation of the appellants in the occurrence are concerned. PW-8 and PW-10 are injured witnesses and in a criminal trial an injured witness is accorded a special status. The evidence of an injured witness is tested on the same principles as that of an eye-witness but an injured witness lends assurance to the Court that he was present at the place of occurrence. The evidence of PW-8 and PW-10 is substantially corroborated by the medical evidence. Jhari Mahto has died on the spot and Jagdish Mahto was taken to Sadar Hospital, Giridih for his treatment, however, he did not survive and died on the same day. Basudeo Yadav and Meena Devi were treated at Giridih Hospital and the injury report of Meena Devi has been produced during the trial. 21. However, the prosecution has not disclosed the manner of occurrence truthfully and for the reasons we would discuss now the conviction of the appellants under section 302/34 of the Indian Penal Code was not proper. 22. The case set up by the defence is that in exercise of right of private defence they warded off attack by the prosecution party and in the occurrence both sides have suffered serious injuries. By the defence copies of sale deeds, FIR and deposition of Dr. Kaushlendra Kumar who was examined as PW-6 in S.T. No. 171 of 1994, which had commenced on the basis of Giridih PS Case No. 50 of 1993 lodged by Triloki Mahato against Basudeo Yadav, were produced. 23. By the defence copies of sale deeds, FIR and deposition of Dr. Kaushlendra Kumar who was examined as PW-6 in S.T. No. 171 of 1994, which had commenced on the basis of Giridih PS Case No. 50 of 1993 lodged by Triloki Mahato against Basudeo Yadav, were produced. 23. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in the exercise of the right of private defence and section 97 of the Indian Penal Code gives right to a person to defend his person and the property. Section 99 of the Indian Penal Code, however, provides that the right to private defence of the body and property is subject to restrictions. Section 100 of the Indian Penal Code which deals with a situation when the right of private defence of the body extends to causing death reads as under: "100. When the right of private defence of the body extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: — First. - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly - An assault with the intention of committing rape; Fourthly. - An assault with the intention of gratifying unnatural lust; Fifthly. - An assault with the intention of kidnapping or abducting; Sixthly. - An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release." 24. PW-8 has stated that when she arrived at the place of occurrence she found that both the parties were engaged in a quarrel. According to the prosecution Triloki Mahato and his sons were present at the place of occurrence and Jhari Mahto had objected to ploughing of the field by Triloki Mahato. In the occurrence both sides have suffered several injuries; Rama Mahato has suffered as many as eleven injuries. According to the prosecution Triloki Mahato and his sons were present at the place of occurrence and Jhari Mahto had objected to ploughing of the field by Triloki Mahato. In the occurrence both sides have suffered several injuries; Rama Mahato has suffered as many as eleven injuries. The learned Sessions Judge has recorded a finding that the occurrence took place on account of a land dispute and both the parties were claiming right over the land comprised under Plot No. 1812. During the trial several sale deeds relating to Plot Nos. 1812 and 1813 were produced by both the parties. From the finding of the learned Sessions Judge that major part of the land comprised under Plot No. 1812 belongs to the prosecution side, it is apparent that the appellants' possession over a part of the land under Plot No. 1812 is accepted by the Court. The right of private defence cannot be claimed when the accused are aggressors and the members of the prosecution party were totally unarmed. In "Balmukund v. State of MP." reported in (1981) 4 SCC 432 the Hon'ble Supreme Court has observed that in a rural landscape even today dispute as to possession of agricultural land is a part of life and right of private defence cannot be judged step by step or in golden scales. From the evidences laid by the prosecution it is apparent that in this case both parties were armed, at least three persons on both sides have suffered injuries and there is serious doubt who started assault first. 25. On 18.06.1993, Dr. Kaushlendra Kumar has examined Triloki Mahato at about 8:30 AM and found (i) bruise over right forearm of the size of 3" x 2" and (ii) abrasion on the right forearm, lower part, of the size of 1" x 1/2 " on his person: These injuries were simple and caused by hard and blunt object. 26. 25. On 18.06.1993, Dr. Kaushlendra Kumar has examined Triloki Mahato at about 8:30 AM and found (i) bruise over right forearm of the size of 3" x 2" and (ii) abrasion on the right forearm, lower part, of the size of 1" x 1/2 " on his person: These injuries were simple and caused by hard and blunt object. 26. On the same day, he has examined Rama Mahato and found the following injuries on his person: "(i) Big heading sharp cut- (a) Right side of the face transversally placed from the angle of the mouth to the angle of mandible right side 4" x 4" x skin deep and profusely bleeding; (b) On the skull behind hair line 2" x 1" x bone deep bleeding; (c) On the vertex 1" x ½" x skin deep; (d) Mastoid region luhiolid right ear 1" x ¼" x skin deep; (e) Transversally placed, right arm 3" x ½" x ½" x skin deep; (f Terminal phalyx transversally placed 1" x 1/8" x skin deep, bleeding left side; (g) Middle finger, middle phalyx 1" x 1/8"x 1/8" left side; (h) Ring finger, middle phalyx, transversally placed 1" x 1/8" x skin deep; (i) In front of the neck (wind pipe) 1" x 1/8" x 1/8" bleeding with tailuig lower part; (o) Left arm 3" x 1/8" x skin deep; (k) Lower part left arm 2 ½ " x 1/8" x skin deep." 27. All injuries on Rama Mahato were simple in nature and caused by sharp cutting weapon. 28. He has also examined Hukum Mahto the same day and found the following injuries on him: “(i) Sharp Cut- (a) Over left parietal region 1 ½" x ¼" skin deep with bleeding; (b) Frontal portion of the skull behind hair line 1 ½" x ½" x bone deep; (c) On the vertex-1" x ¼" x skin deep. (ii) Bruise- (a) Over left lower part off orearm on ulnar border 1 ½" x ½" with tenderness and swelling. The X-ray done on 23.06.1993, plate No.356 shows fracture of ulnar shaft. (b) Over right forearm upper part 2" x ½"; (c) Right arm 1 ½” x ½". 29. In his opinion the injury no.(ii)(a) on Hukum Mahto was grievous in nature and other injuries were simple in nature. 30. In the estimation of the doctor injuries of these persons were caused within six hours. (b) Over right forearm upper part 2" x ½"; (c) Right arm 1 ½” x ½". 29. In his opinion the injury no.(ii)(a) on Hukum Mahto was grievous in nature and other injuries were simple in nature. 30. In the estimation of the doctor injuries of these persons were caused within six hours. This observation of the doctor would also go to show that they have suffered injuries in the same occurrence. 31. It is an admitted fact that Jhari Mahto had first raised objection to ploughing of field by Triloki Mahato. In "Bishna v. State of W.B. " reported in (2005) 12 SCC 657 the Hon'ble Supreme Court has observed that it is natural that a man who is attacked should resist and his resistance, as such, will not be unlawful and it is not necessary that he should wait to be actually struck, before striking in self defence. From the materials brought on record and judged on the scale of preponderance of probability, we have no hesitation to hold that the appellants had a right to defend themselves but they have exceeded their right to self defence. 32. On the basis of the prosecution evidence which is challenged by the defence on the manner of occurrence by showing serious injuries to three appellants in the occurrence, all that the prosecution has been able to establish is presence and participation of the appellants in the occurrence but it has failed to prove the charge under section 302/34 of the Indian Penal Code. The prosecution has failed to establish that the appellants intended to commit murder or had requisite knowledge that their acts were so imminently dangerous that in all probability death would be caused to the victims. Section 300 of the Indian Penal Code provides that if an act is done with intention to cause death that would amount to murder. From the evidence of the prosecution it is not established that the appellants intended to cause death of Jhari Mahto and Jagdish Mahto. Exception 4 to section 300 of the Indian Penal Code provides that culpable homicide is not murder if the act by which death was caused without pre-meditation in a sudden fight in a heat of passion upon a sudden quarrel. Exception 4 to section 300 of the Indian Penal Code provides that culpable homicide is not murder if the act by which death was caused without pre-meditation in a sudden fight in a heat of passion upon a sudden quarrel. However, for extending the benefit under Exception 4 it must be shown that the offender has not taken any undue advantage or acted in a cruel or unusual manner. 33. In "Surinder Kumar v. Union Territory, Chandigarh" reported in (1989) 2 SCC 217 the Supreme Court has indicated the essential ingredients which are necessary to cover a case under Exception 4 to section 300 of the Indian Penal Code, thus; "7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant has not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly………………” 34. A quarrel between both sides on account of a dispute pertaining to possession of land has ensued into a major scuffle in which both sides have suffered injury and while so it must be held that there was no pre-meditation. This is not a case set up by the prosecution that the appellants armed with deadly weapon had gone to the house of the deceased persons or they waylaid them, rather from the evidence of PW-8 it would appear that a sudden fight had erupted after a quarrel took place between both sides. This is not a case set up by the prosecution that the appellants armed with deadly weapon had gone to the house of the deceased persons or they waylaid them, rather from the evidence of PW-8 it would appear that a sudden fight had erupted after a quarrel took place between both sides. PW-8 has stated that Hukum Mahto had attacked Jhari Mahto on his head and Jagdish Mahto was assaulted by all the accused persons and amongst them Rama Mahato and Triloki Mahto were holding Barccha and Tribhuan Mahto was holding Farsa. However, in the same breath she says that Rama Mahato has assaulted her by a sword. PW-10 has stated that Tribhuan attacked his father with a sword and Hukum assaulted him with a Farsa, both on head, and others by lathi and in his cross-examination also he has stated that Tribhuan Mahto and Hukum Mahto had attacked Jhari Mahto on his head. However, only one incised wound has been found on the person of Jhari Mahto. The appellants, who according to the prosecution were carrying sharp-cutting weapon have not assaulted Jagdish Mahto is reflected from the medical evidence; no sharp-cutting injury has been found on the person of Jagdish Yaday. On such facts, it can be safely inferred that the appellants did not take undue advantage of the situation. In fact, if number of blows is counted the appellants have suffered more injuries compared to the deceased persons and Meena Devi. 35. To conclude, we hold that the appellants are entitled to seek shelter to Exception 4 to section 300 of the Indian Penal Code and, therefore, their conviction and sentence under section 302/34 of the Indian Penal Code is not sustainable in law. 36. Accordingly, the judgement of conviction of the appellants, namely, Hukum Mahto and Tribhuan Mahto in Criminal Appeal (D.B.) No.436 of 2012 and the appellant, namely, Rama Mahato in Criminal Appeal (D.B.) No.372 of 2012 under section 302/34 of the Indian Penal Code dated 28.02.2012 and the order of sentence of life imprisonment for the offence under section 302/34 of the Indian Penal Code dated 29.02.2012 passed by the learned District & Sessions Judge-I, Giridih in Sessions Trial No. 416 of 1993 are set-aside. 37. The appellants, above named, are convicted under section 304 Part-1 of the Indian Penal Code and sentenced to RI for ten years. 38. 37. The appellants, above named, are convicted under section 304 Part-1 of the Indian Penal Code and sentenced to RI for ten years. 38. However, the conviction of the appellants, namely, Hukum Mahto and Tribhuan Mahto in Criminal Appeal (D.B.) No. 436 of 2012 and the appellant, namely, Rama Mahato in Criminal Appeal (D.B.) No.372 of 2012 for the offence under section 148 of the Indian Penal Code dated 28.02.2012 and the order of sentence of RI for two years for the said offence dated 29.02.2012 passed by the learned District & Sessions Judge-I, Giridih in Sessions Trial No. 416 of 1993 are affirmed. 39. Mr. Vineet Kumar Vashistha, the learned APP states that the appellants are in custody and with remission they have already undergone sentence of more than twelve years. 40. Accordingly, the appellants, namely, Hukum Mahto and Tribhuan Mahto in Criminal Appeal (D.B.) No.436 of 2012 and the appellant, namely, Rama Mahato in Criminal Appeal (D.B.) No.372 of 2012, shall be set free forthwith, if not required in connection to any other criminal case. 41. In the result, Criminal Appeal (D.B.) No.436 of 2012 and Criminal Appeal (D.B.) No.372 of 2012 are partly allowed, in the aforesaid terms. 42. Let lower Court records be transmitted to the Court concerned, forthwith. 43. Let a copy of the judgement be communicated to the trial Court through FAX.