JUDGMENT : Shree Chandrashekhar, J. Mahadeo Singh Munda and Chaitan Singh Munda who are the appellants in Criminal Appeal (DB) No.512 of 2013 along with Lakhindra Singh Munda, Shambhu Nath Singh Munda and Arjun Singh Munda who are the appellants in Criminal Appeal (DB) No.386 of 2013 are convicted and sentenced under section 302/34 of the Indian Penal Code. In Sessions Trial No.113 of 2007 with Sessions Trial No.491 of 2007, the appellants are sentenced to RI for life and a fine of Rs. 20,000/- each under section 302/34 of the Indian Penal Code with a default stipulation to undergo further imprisonment for two years. 2. Mahadeo Singh Munda, Chaitan Singh Munda, Lakhindra Singh Munda, Shambhu Nath Singh Munda, Arjun Singh Munda and Nishikant Singh Munda were made accused in Tamar PS Case No.70 of 2006 which was registered on 28th July 2006 under section 302/34 of the Indian Penal Code. The fardbeyan of Ranjeet Singh Munda was recorded on 28th July 2006 at 10:15 AM by Rampravesh Kumar who was the officer-in-charge of Tamar PS. The informant who is the husband of Manjri Devi stated that after working in the field he returned home at 05:00 PM. Soon thereafter, he heard cries of his wife and daughter and so rushed in that direction. There he saw that Mahadeo Singh Munda, Chaitan Singh Munda, Lakhindra Singh Munda, Shambhu Nath Singh Munda, Arjun Singh Munda and Nishikant Singh Munda had encircled his wife. They committed marpit with his wife who was trying to ward-off the assault and was crying. The informant further stated that he reached the place of occurrence with his brothers-in-law and tried to intervene but in the meantime Chaitan Singh Munda slapped and pushed his wife and Mahadeo Singh Munda started indiscriminate attack on her head with tangi. The other villagers who were working in the adjoining field when reached there the accused left his wife and fled away. 3. Nishikant Singh Munda could not be apprehended and the case of other five accused was committed to the Court of Sessions for trial. It appears that Sessions Trial No.113 of 2007 started against Shambhu Nath Singh Munda after a separate charge under section 302/34 of the Indian Penal Code was framed against him on 21st May 2007 and other four accused were put on trial in a separate sessions case vide Sessions Trial No.491 of 2007. It appears that Sessions Trial No.113 of 2007 started against Shambhu Nath Singh Munda after a separate charge under section 302/34 of the Indian Penal Code was framed against him on 21st May 2007 and other four accused were put on trial in a separate sessions case vide Sessions Trial No.491 of 2007. Both the sessions cases were amalgamated vide order dated 4th August 2008 and the appellants were tried together. 4. Eight witnesses are examined by the prosecution to prove the charge under section 302/34 of the Indian Penal Code. Dr. Chandra Shekhar Prasad who conducted the postmortem examination rendered an opinion that the injuries caused to Manjri Devi were antemortem in nature, caused by hard and blunt substance and time elapsed since death was about 12 to 36 hrs. at the time of postmortem examination. 5. The learned Judicial Commissioner-I, Khunti held that the witnesses fully supported the prosecution case that Manjri Devi was murdered on 27th July 2006 at 05:00 PM near well of Bhagat Singh. The learned trial Judge further held that the manner of occurrence was not challenged by the defence as PW3, PW4, PW5 and PW6 were not cross-examined in this regard, besides PW1 was not cross-examined at all. As regards involvement of Shambhu Nath Singh Munda, Lakhindra Singh Munda and Arjun Singh Munda, the learned trial Judge held that they also actively participated in commission of the offence in furtherance of common intention as they all armed with tangi had surrounded Manjri Devi. 6. The learned trial Judge has held as under : “17. It is not out of place to mention here that total six accused persons were charge-sheeted out of which one Nishikant Singh who is declared absconder as such above named five accused persons facing trial in this case. 6. The learned trial Judge has held as under : “17. It is not out of place to mention here that total six accused persons were charge-sheeted out of which one Nishikant Singh who is declared absconder as such above named five accused persons facing trial in this case. It is submitted on behalf of the defence that there is no allegation of assault against accused Shambhu Nath Singh Munda, Lakhider Singh Munda and Arjun Singh Munda because the witnesses has only alleged that Chaitan Singh Munda slapped the deceased Manjri Devi who fell down and thereafter Mahadeo Singh Munda assaulted her with tangi on her head repeatedly but the act of other accused persons were being not less assaulting the deceased but other accused persons have actively participated in the commission of the offence i.e. in furtherance of common intention they were present on the spot armed with tangi and has surrounded the deceased as such they were actively participated in the commission of the offence. Although the assault was made by only two accused persons but other accused persons are also liable for the same offence because of common intention they acted in furtherance of common intention.” 7. As noticed above, the appellants are convicted for committing murder of Manjri Devi. Hence, the present appeal. 8. Shambhu Nath Singh Munda who is the appellant no.3 in Criminal Appeal (DB) No.386 of 2013 passed away during pendency of these criminal appeals, but, inspite of opportunities granted to the legal heir/successor of appellant no substitution petition was filed and, accordingly, Criminal Appeal (DB) No.386 of 2013 qua Shambhu Nath Singh Munda was dismissed as not pressed vide order dated 21st September 2021. 9. Except PW7 who conducted the postmortem examination and PW8 who is the investigating officer, all other prosecution witnesses are related to the deceased. It has come on record that Mahadeo Singh Munda was suspecting Manjri Devi a Daain who was practicing witchcraft and on that basis it is contended that the evidence tendered by the prosecution witnesses was laced with malice. No doubt the material witnesses are related to Manjri Devi but we do not find any trace of animosity with the other appellants. The motive for a crime is known to the assailant and the others may only speculate. No doubt the material witnesses are related to Manjri Devi but we do not find any trace of animosity with the other appellants. The motive for a crime is known to the assailant and the others may only speculate. This is one of the reasons why the Courts have held that irrespective of proof of motive the prosecution can establish a case against the accused. Now keeping in mind the aforesaid principles, we would see what the witnesses have stated in the Court. 10. PW1 stated that in the evening of 27th July 2006, around 05:00 PM, Manjri Devi had gone with her daughter to fetch water from well of Bhagat Singh and on her way back home Mahadeo Singh Munda, Chaitan Singh Munda, Arjun Singh Munda, Lakhindra Singh Munda, Shambhu Nath Singh Munda and Nishikant Singh Munda encircled Manjri Devi and assaulted her with lathi. On seeing assault upon her mother, Radha Mani Kumari raised hulla whereupon he came out from his house and saw the occurrence. According to this witness, Chaitan Singh Munda slapped Manjri Devi and when she fell on the ground Mahadeo Singh Munda assaulted her with tangi. PW2 had gone to Sumannari to plough the field and around 05:00 PM he came back home. He is brother of Manjri Devi who deposed in the Court that on hearing hulla when he went to the well of Bhagat Singh he found the accused persons assaulting his sister. PW2 has stated in the cross-examination that only Mahadeo Singh Munda and Arjun Singh Munda committed marpit while others were just standing there. PW3 who is the daughter of Manjri Devi stated in the Court that the accused persons encircled her mother and Mahadeo Singh Munda started indiscriminate assault upon head of her mother. She has further stated that other accused also assaulted her mother with tangi. But from her cross-examination it appears that she had not made such statement before the police in course of the investigation. The investigating officer has also stated in the cross-examination that Radha Mani Kumari did not make a statement before him that all accused had assaulted her mother over her head. She has stated in the cross-examination that the first assault was given by Mahadeo Singh Munda and thereafter Lakhindra Singh Munda also gave a tangi blow over head of her mother. She has stated in the cross-examination that the first assault was given by Mahadeo Singh Munda and thereafter Lakhindra Singh Munda also gave a tangi blow over head of her mother. PW4 who is the husband of Manjri Devi has testified in the Court that on hearing cries of his daughter he ran towards the place of occurrence and saw that the accused were engaged in marpit with his wife. He also stated that Mahadeo Singh Munda was striking indiscriminately over head of Manjri Devi. He has however admitted in the cross-examination that before he could reach near the well of Bhagat Singh the accused had already killed his wife. PW5 is a seizure witness who has proved seizure of blood stained soil by the investigating officer. PW6 is the other brother of Manjri Devi who had also come to her village for ploughing the field. In his examination-in-chief, PW6 has stated that he saw Mahadeo Singh Munda inflicting tangi blows over head of his sister. He has further stated that he reached the place of occurrence after about 10-15 minutes. 11. From the aforesaid evidence the participation of Lakhindra Singh Munda, Shambhu Nath Singh Munda (since deceased) and Arjun Singh Munda who were put on trial together with Mahadeo Singh Munda and Chaitan Singh Munda is not established by the prosecution, but, in paragraph no.17 of the judgment, the learned Judicial Commissioner-I, Khunti has returned a finding that only two accused made assault upon Manjri Devi but others are also liable because they were acting in furtherance of common intention. 12. Section 34 provides that when a criminal act is done by several persons in furtherance of the common intention each of such persons is liable for that act in the same manner as if it were done by him alone. In “Mahbub Shah v. Emperor” AIR 1945 PC 118 the Judicial Committee pointed out that to invoke the aid of section 34 of the Indian Penal Code it must be shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intention of all. The question with regard to the nature of offence, therefore, has to be determined on the facts and in the circumstances of the case. 13. Mr. Ashok Kumar Pandey, the learned counsel for the appellants in Cr. The question with regard to the nature of offence, therefore, has to be determined on the facts and in the circumstances of the case. 13. Mr. Ashok Kumar Pandey, the learned counsel for the appellants in Cr. Appeal (DB) No. 386 of 2013, refers to the judgments in “Ashoksinh Jayendrasinh v. State of Gujarat” (2019) 6 SCC 535 , “Darshan Singh v. State of Punjab” (2009) 16 SCC 290 and “Krishnegowda v. State of Karnataka” (2017) 13 SCC 98 to submit that the accused should be extended benefit of doubt where the evidence is contradictory and not supported by independent evidence to establish involvement of the accused in the crime. 14. There are serious inconsistencies in the evidence of prosecution witnesses on manner of occurrence, weapon held by them and assault upon Manjri Devi. PW1 deposed in the Court that Mahadeo Singh Munda inflicted tangi blow on the head of Manjri Devi and the other accused assaulted her with lathi. PW3 has testified that when her mother fell on the ground Mahadeo Singh Munda started indiscriminate assault over her head with a tangi. On a careful examination of the evidence tendered by PW2, PW4 and PW6, we observe that their testimonies are not cogent and consistent rather in total contradiction to each other on material aspects of the case. We further find that there is serious controversy about presence of PW2 and PW6 in the village of their sister and more particularly at the time of the occurrence. Even assuming that all five accused were present near well of Bhagat Singh, where according to the prosecution Manjri Devi suffered fatal injuries, the prosecution has failed to establish participation of Lakhindra Singh Munda, Shambhu Nath Singh Munda (since deceased) and Arjun Singh Munda in the occurrence. As we have already seen, the learned trial Judge also finally does not seem to accept the prosecution story that Manjri Devi suffered assaults at the hands of all the accused. 15. In view of the aforesaid discussions and keeping in mind the finding recorded by the learned trial Judge in paragraph no.17 of the Sessions Court's judgment that only two accused assaulted Manjri Devi, we hold that the prosecution has failed to prove participation of Lakhindra Singh Munda, Shambhu Nath Singh Munda (since deceased) and Arjun Singh Munda in the occurrence. In view of the aforesaid discussions and keeping in mind the finding recorded by the learned trial Judge in paragraph no.17 of the Sessions Court's judgment that only two accused assaulted Manjri Devi, we hold that the prosecution has failed to prove participation of Lakhindra Singh Munda, Shambhu Nath Singh Munda (since deceased) and Arjun Singh Munda in the occurrence. We further hold that the prosecution has failed to establish that death of Manjri Devi was caused in furtherance of common intention of all. 16. Accordingly, Criminal Appeal (DB) No. 386 of 2013 is allowed. 17. The appellants Lakhindra Singh Munda and Arjun Singh Munda who are on bail stand discharged of liability of the bail-bonds furnished by them. 18. The attribution against Chaitan Singh Munda is that he slapped Manjri Devi. The prosecution story that not only Mahadeo Singh Munda the other accused also assaulted her is not established and as we have already held that the prosecution failed to establish that death of Manjri Devi was caused in furtherance of common intention, therefore, Chaitan Singh Munda can at best be convicted under section 323 of the Indian Penal Code. He is sentenced to RI for one year under section 323 of the Indian Penal Code. 19. Mr. Manoj Kumar Mishra, the learned APP, informs us that Chaitan Singh Munda who is in custody has served sentence for more than twelve years, with remission. 20. Accordingly, the appellant Chaitan Singh Munda shall be set-free forthwith, if not wanted in connection with any other case. 21. The consistent case of the prosecution is that Mahadeo Singh Munda gave tangi blows over the head of Manjri Devi. PW7 who conducted the postmortem examination rendered an opinion that death of Manjri Devi was caused due to head injury. 22. The injuries found on Manjri Devi are extracted below: “Abrasion- 1cm x ½ cm and 1 cm x ½ cm on left temple of face. Lacerated wound – (i) 1 cm x 1 cm, soft-tissue deep on left eyebrow outer side. (ii) 12 cm x ½ cm, bone deep on left temporal parietal region of head. (iii) 5 cm x ½ cm, scalp deep on left parietal region of head.” 23. Mr. Lacerated wound – (i) 1 cm x 1 cm, soft-tissue deep on left eyebrow outer side. (ii) 12 cm x ½ cm, bone deep on left temporal parietal region of head. (iii) 5 cm x ½ cm, scalp deep on left parietal region of head.” 23. Mr. J. S. Singh, the learned counsel for the appellants in Criminal Appeal (DB) No. 512 of 2013, relies on the decisions in “Mahesh Balmiki v. State of M.P” (2000) 1 SCC 319 , “Thakuwa Munda and Another v. The State of Jharkhand” [Criminal Appeal (DB) No. 168 of 2011] and “Lakshman Yadav v. The State of Jharkhand” [Criminal Appeal (DB) No. 252 of 2011] to submit that Mahadeo Singh Munda can at best be convicted and sentenced under section 304 Part II of the Indian Penal Code. 24. Except injury no.(ii) which is a lacerated wound of the size of 12 cm x ½ cm, bone deep, other injuries appear to be simple in nature. According to the doctor, the injury no.(ii) may be caused by back side of tangi. No other injury of serious nature was caused to Manjri Devi. From the materials on record, we find that the prosecution has failed to establish that Mahadeo Singh Muda assaulted Manjri Devi with an intention to kill her. A head injury would no doubt be dangerous to life but the manner in which Mahadeo Singh Munda inflicted injury no.(ii), that is to say by back side of a tangi, it is difficult to hold that he had requisite knowledge as envisaged under Clause 4thly to section 300 of the Indian Penal Code. We therefore hold that Mahadeo Singh Munda by assaulting Manjri Devi committed culpable homicide not amounting to murder. We further find that the acts of Mahadeo Singh Munda would bring his case within Exception 4 to section 300 of the Indian Penal Code. 25. Exception 4 to Section 300 of the Indian Penal Code reads as under: “Exception 4 – 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. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.” 26. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault.” 26. In “Surinder Kumar v. Union Territory, Chandigarh” (1989) 2 SCC 217 , the Hon'ble 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 had 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 been sudden and unpremeditated and the offender 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. …..” 27. In view of the nature of injury caused to Manjri Devi, Mahadeo Singh Munda is convicted and sentenced to RI for ten years under section 304 Part I of the Indian Penal Code. 28. Mr. Manoj Kumar Mishra, the learned APP, informs the Court that Mahadeo Singh Munda has remained in custody for more than twelve years, with remission. 29. Accordingly, the appellant Mahadeo Singh Munda shall be set-free forthwith, if not wanted in connection with any other case. 30. Criminal Appeal (DB) No. 512 of 2013 is partly allowed, in the above terms. 31. Let the lower-Court records be sent to the Court concerned forthwith. 32. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.