JUDGMENT : Shree Chandrashekhar J. 1. Chakradharpur P.S. Case No. 35 of 2009 was lodged against Ramlal Sharma on 26.03.3009 on the allegation that he has committed murder of Janki Devi, his mother. In his fardbeyan which was recorded at 08:00 PM on 26.03.3009, Ganesh Sharma who is grandson of the deceased has stated that Ramlal Sharma who was quarreling with his mother for a share in his house property has assaulted her with hammer. At about 04:30 PM, he was sitting at the top floor of his house while Rita Sharma, his aunt, was in her room. He heard cries of his grandmother, so immediately came down and saw that his uncle was assaulting his grandmother with a hammer. He called his aunt and tried to get hold of the hammer and apprehend his uncle. He chased him to some distance however his uncle escaped and then he came back home where he found his grandmother writhing in pain, lot of blood was oozing from her head. With the help of the neighbours he took her to Government Hospital where she was administered First Aid and referred to Railway Hospital. Janki Devi died the same day in course of her treatment at Railway Hospital: After the investigation a charge-sheet was filed against the appellant under section 302 of the Indian Penal Code and he has faced the trial in Sessions Trial No. 137 of 2009 on the charge of intentionally causing death of his mother. 2. The prosecution has examined nine witnesses during the trial to prove the charge under section 302 of the Indian Penal Code against the appellant - the informant is PW5. Dr. Santosh Kumar Srivastav who has conducted the post-mortem examination on 27.03.2009 has found four lacerated wounds over the forehead, scalp and cheek of Janki Devi. The learned Additional Sessions Judge-I, West Singhbhum at Chaibasa has held that PW5 and PW7 are the eyewitnesses and there is no doubt on the place of occurrence; evidence of the defence witnesses does not inspire confidence, and; ocular evidence is fully corroborated by medical evidence. 3. The learned trial Judge had dealt with the defence evidence in paragraph no. 25 of the judgment in the following manner: "25. So far as evidence of D.W2 Dr. 3. The learned trial Judge had dealt with the defence evidence in paragraph no. 25 of the judgment in the following manner: "25. So far as evidence of D.W2 Dr. Savitri Rani is concerned, she has stated that deceased Janki Devi was brought at P.H.C. Chakradharpur and she was on duty as Emergency Doctor and she found injuries on the deceased and injured was referred to higher centre for treatment and son of deceased, namely, Narayan Sharma and daughter-in-law Savitri Sharma told that patient has sustained injuries by fall from roof Though, in cross-examination, this witness has stated that except this entry in emergency register there is no other entry that any relative of any patient told cause of injuries. So, this aspect also creates doubt on the evidence of D.W.2 Dr. Savitri Rani; because, it was not the routine matter rather exceptionally, it has been mentioned in Ext.B Emergency Register at Serial No. 300. Not only this, she has stated that Narayan Sharma and Savitri Sharma told her that patient sustained injuries by fall from roof Narayan Sharma who is also known as Suraj Kumar Sharma has been examined as P W 4 and Smt. Savitri Sharma has been examined as P.W8. Both these witnesses have deposed in their evidences that they are not the eye-witnesses of the occurrence. So, it is apparent that they are not competent to say that how deceased sustained injuries and their evidences are based on information given by P W5. Ganesh Sharma and P.W7 Smt. Rita Sharma, who were the eye-witnesses of the occurrence. Not only this, P.W4 Suraj Kumar Sharma @ Narayan Sharma and P.W8 Smt. Savitri Sharma have fully supported the occurrence in their evidences and have stated that it was told to them that accused Ramlal Sharma has assaulted deceased by hammer. No attention of these witnesses has been drawn by the defence that earlier before the Doctor at Government Hospital, Chakradharpura you had stated that deceased sustained injuries by fall from roof and in absence such attention, defence adduced by the accused appears doubtful and manipulated and it appears that this evidence has been created later on. In these circumstances, evidence of D.W1 and D.W2 as well as extract of Emergency Register (Ext.B) inspires no confidence and appears doubtful and this evidence is not of such nature that except this evidence, no other view is possible. In these circumstances, evidence of D.W1 and D.W2 as well as extract of Emergency Register (Ext.B) inspires no confidence and appears doubtful and this evidence is not of such nature that except this evidence, no other view is possible. Hence, I am of the view that no reliance can be placed on the evidences adduced by the defence.” 4. In Sessions Trial No. 137 of 2009, the appellant was convicted and sentenced to RI for life and a fine of Rs. 5000/- under section 302 of the Indian Penal Code, with a default stipulation to undergo SI for six months. 5. Mr. Rajesh Kumar, the learned counsel for the appellant submits that PW5 is a chance witness and PW7, another eyewitness, has not seen the appellant assaulting his mother because the prosecution has failed to establish the place of occurrence which was visible to her while being inside the room. There was a motive for PW5 and PW7 to falsely implicate the appellant to grab his share in the family properties and gaps in the prosecution case create serious doubts on the manner of occurrence as described by the witnesses. The alternative argument raised by the learned counsel for the appellant is that the prosecution has failed to establish that the appellant intended to cause death of his mother and the case set up by the prosecution as would appear from examination of the appellant under section 313 CrPC brings his case under Exception 4 to section 300 of the Indian Penal Code. 6. PW 1- Shankar Vishwakarma is a neighbor of the appellant who has stated in the Court that he has signed the inquest report and in his presence police has collected blood from the room and a seizure-list was prepared which was signed by him. He came to know that the appellant has assaulted his mother by hammer and fled away. He has seen the dead-body of Janki Devi at Railway Hospital, Chakradharpur. PW2-Deepak Sao is also a seizure witness. He has deposed in the Court that in the evening of 26.03.2009 when he came back home he heard that the appellant has killed his mother with hammer. He had gone to the Hospital to see Janki Devi where she died in course of the treatment. PW3-Vishwanath Prasad Sharma is the cousin brother of the appellant who in the afternoon of 26.03.2009 was at his shop. He had gone to the Hospital to see Janki Devi where she died in course of the treatment. PW3-Vishwanath Prasad Sharma is the cousin brother of the appellant who in the afternoon of 26.03.2009 was at his shop. On information that the appellant has assaulted his mother he had gone to Hospital. He has stated that the inquest was conducted at the Hospital and he has signed the inquest report. PW 4 is the younger brother of the appellant who has deposed in the Court that at about 05: 00 PM on 26.03.2009 he was in his shop at Sunday Market (Etwari Bazaar), where he got information that the appellant has assaulted the mother with a hammer. He had gone to Government Hospital at Chakradharpur where he was informed that the injured was taken to Railway Hospital and by the time he reached there his mother had passed away. He has seen head injuries on her mother and on enquiry the informant told him that Ramlal Sharma has assaulted the mother and tied away. PW5 who is the informant and PW7 who is the daughter-in-law of Janki Devi have fully supported the prosecution case against the appellant. PW8-Smt. Savitri Sharma is the elder daughter-in-law of the deceased. She has stated that at about 04:00-05:00 PM she had gone to the house of a neighbor to attend puja. On hearing that the appellant has assaulted her mother-in-law she came home and saw her lying injured in a pool of blood. She has seen head injuries on her mother-in-law and PW7 told her that the appellant has assaulted his mother. 7. PW5 and PW7 are the star witnesses for prosecution; both have seen the appellant assaulting Janki Devi with hammer. The incident has occurred at around 04:00-05:00 PM and at that time presence of PW7, a housewife, in the house was quite natural. PW5 has stated in his cross-examination that in the afternoon around the time when the occurrence took place normally he would be at the shop and on that basis it is contended that he is a chance witness. Mr. PW5 has stated in his cross-examination that in the afternoon around the time when the occurrence took place normally he would be at the shop and on that basis it is contended that he is a chance witness. Mr. Rajesh Kumar, the learned counsel for the appellant would submit that the appellant was living at Chandil and the prosecution has failed to produce the hammer with which Janki Devi was assaulted and since there is clear motive on part of the prosecution witnesses to falsely implicate the appellant in the case, the evidence of PW5 has become suspicious and cannot be relied upon by the prosecution. There is no law of universal application that a chance witness cannot be a reliable and trustworthy witness. All that is required in law is to find whether the prosecution has satisfactorily explained presence of the chance witness at the time and place where the occurrence has taken place. In his testimony, PW5 has explained that around the time when the appellant started assaulting his grandmother he was about to leave for his shop. From the materials on record it would further appear that he was not the only person running the shop, rather PW 4 was at the shop at that time. He has stated that his father was elder amongst three brothers one of whom has passed away and the appellant was the other one. He has further stated that the appellant was asking for his share in the house in which they were living - the appellant was living in another house and about 15 days back he had come there and was staying with them, while his family was at Chandil. It has come on record that the appellant has a son aged about 15 years and his wife is also alive. The defence set up by the appellant that he was falsely implicated in this case to grab his share in the family properties does not appeal to reasons, for his false implication in the case would not deprive his family of his share in the family properties. The defence set up by the appellant that he was falsely implicated in this case to grab his share in the family properties does not appeal to reasons, for his false implication in the case would not deprive his family of his share in the family properties. PW3 has stated in his cross-examination that in absence of the appellant his property may go in share of his brother (Ramlal Sharma ke nahi rahne par sampatti uske bhai ko mil sakti hai), but then, sending the appellant to jail is not enough to deprive his family of the properties and in view of his son and wife being alive the aforesaid statement of PW3 is of no consequence. 8. From the evidence of PW 5 and PW 7, presence of the appellant in the house and assault by him on his mother are established. The prosecution has produced other independent materials to support the eyewitness account of the incident as narrated by them. PW 1, PW2 and PW3 who are the inquest and seizure witnesses have deposed in the Court that they heard about the appellant assaulting his mother with a hammer. They have seen the dead-body of Janki Devi in Hospital and they have proved the inquest report and seizure memo. Their evidence is of corroborative nature admissible under section 157 of the Indian Evidence Act. PW4 is the other son of Janki Devi who has truthfully admitted in the Court that he is not an eyewitness and he came to know about the incident from the informant. His testimony is also important for the prosecution in that he supports the informant who has also deposed in the same manner. PW8, the elder daughter-in-law of the deceased has also supported the prosecution case. She has stated in the Court that PW7 has seen the appellant assaulting his mother. 9. In a criminal trial, motive is a significant factor but absence of motive is not a determinative factor if the prosecution has produced circumstances of definitive character and the ocular evidence is cogent and consistent. 10. In "Shea Shankar Singh v. State of Jharkhand" (2011) 3 SCC 654 , the Hon'ble Supreme Court has observed as under: "15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. 10. In "Shea Shankar Singh v. State of Jharkhand" (2011) 3 SCC 654 , the Hon'ble Supreme Court has observed as under: "15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however; recedes into the background in cases where the prosecution relies upon an eyewitness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eyewitnesses." 11. In the aforesaid state of evidence, we do not find any substance in the submission that the prosecution has failed to establish the place of occurrence and the appellant has been falsely implicated to grab his property. 12. Mr. Rajesh Kumar, the learned counsel for the appellant has contended that the appellant is entitled for the benefits under Exception 4 to section 300 of the Indian Penal Code which reads as under: "Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the hear of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner: " 13. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the hear of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner: " 13. In "Surinder Kumar v. Union Territory, Chandigarh" (1989) 2 SCC 217 , the Hon'ble Supreme Court has observed that for the applicability of Exception 4 to section 300 of the Indian Penal Code the following ingredients must be satisfied: "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" 14. Janki Devi was first taken to Government Hospital at Chakradharpur for her treatment where she was administered First Aid and PW6 who conducted the post-mortem examination has found bandage over her head. He has found the following injuries on the dead-body of Janki Devi: "1. Bandage over head soaked with blood. 2. Lacerated wound on forehead 2"xl" x bone deep, middle part of forehead. 3. Lacerated wound on forehead (L) side 1 ½ x ¼ x ½ 4. Lacerated wound on (L) cheek 2"x ¼ "x l" 5. Lacerated wound on (L) parietal region of scalp-l "x ½ "x ½" 6. Fracture of (L) maxilla." 15. On dissection, he has found fracture of left parietal bone and fracture of frontal bone of scalp. The number of injuries on Janki Devi all on vital parts of the body and fracture of left maxilla indicate that she was assaulted brutally. Lacerated wound on (L) parietal region of scalp-l "x ½ "x ½" 6. Fracture of (L) maxilla." 15. On dissection, he has found fracture of left parietal bone and fracture of frontal bone of scalp. The number of injuries on Janki Devi all on vital parts of the body and fracture of left maxilla indicate that she was assaulted brutally. Janki Devi was aged about 70 years and the appellant has inflicted at least four hammer blows over her head and parietal region. He has acted in a cruel and unusual manner and, therefore, the benefit under Exception 4 to section 300 of the Indian Penal Code cannot be extended to him. 16. However, conviction of the appellant under section 302 of the Indian Penal Code is not proper the reasons for which we would delineate hereinafter. 17. The prosecution evidence is that the appellant had come to the house where his mother was living with other family members. He had come there about 15 days back and though PW 4 has stated in the cross-examination that his brother used to quarrel with the mother, PW8 has admitted in the Court that she has not seen the appellant quarreling with his mother. PW5 has also admitted that before the incident he has not seen his uncle abusing or assaulting his grandmother. He has further admitted that hammer with which the appellant assaulted his mother was lying in the house. On such evidence, it is difficult to conceive that the appellant had come there about 15 days back with some planning in his mind to kill his mother. This, therefore, must be held that the appellant assaulted his mother without premeditation. There was a dispute for partition of the house property and Janki Devi was not happy with the appellant solemnizing inter-caste marriage. The marriage of the appellant was not accepted by the family and that was the reason he was staying separately at Chandil. The relation between the appellant and his mother was not very cordial but it was not bitter also - PW8 has stated that whenever the appellant came there he would take meals with his mother. What had triggered the incident in the afternoon of 26.03.3009 is not known and only on hearing cries of Janki Devi, PW5 and PW7 rushed there and saw the appellant assaulting his mother. What had triggered the incident in the afternoon of 26.03.3009 is not known and only on hearing cries of Janki Devi, PW5 and PW7 rushed there and saw the appellant assaulting his mother. PW8 has stated that the incident has happened suddenly and she does not find any plausible reason for the appellant assaulting his mother. She has also admitted that before the occurrence the appellant never committed marpit with anyone. The past experience of the appellant and rejection of his marriage by the family, particularly by his mother would have been bearing in his mind. These background facts indicate that the incident has occurred suddenly, and from the prosecution evidence it can be also inferred that the appellant has struck hammer blows on his mother under the grave and sudden provocation. 18. The following ingredients are necessary to establish that the offender is liable to be convicted for culpable homicide not amounting to murder falling under Exception 1 to section 300 of the Indian Penal Code: (i) the provocation was grave (ii) the provocation was sudden (iii) the offender had lost his power of self-control and (iv) the death was a result of the assault. 19. A grave provocation within the meaning of Exception 1 to section 300 of the Indian Penal Code must be like the one which deprives the offender of self control. The examination of the appellant under section 313 CrPC under which he was put a circumstance that on account of family dispute he was provoked and assaulted his mother with hammer (gawahon ka yah bhi beyan ki gharelu biwad me hue jhagde ke karan uttejit hokar tumne iradatan sir par hathaura se mara is bare me kya kahna hai) would indicate that it is not a case set up by the prosecution that the appellant has intentionally committed murder of his mother. A hammer blow on the head is definitely dangerous to life and a single blow may cause death of a person, but then, the material evidences that; (i) the incident has happened suddenly (ii) the appellant was not found abusing or assaulting his mother previously (iii) the appellant picked up the hammer in the house, and; (iv) evidence of PW8, sister-in-law of the appellant, that it all happened suddenly, have laid sufficient foundation to hold that the appellant deprived of his self control on account of a grave and sudden provocation has inflicted hammer blows on his mother - number of blows is immaterial and would not take out the case from purview of Exception 1 to section 300 of the Indian Penal Code. 20. For the aforesaid reasons, we are inclined to extend the benefit under Exception 1 to section 300 of the Indian Penal Code, to the appellant. 21. Accordingly, the judgment of conviction of the appellant, namely, Ramlal Sharma under section 302 of the Indian Penal Code dated 05.08.2014 and the order of sentence of RI for life and a fine of Rs. 5,000/- for the offence under section 302 of the Indian Penal Code dated 07.08.2014 passed by the learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in Sessions Trial No.13 7 of 2009 are set-aside. 22. The appellant, namely, Ramlal Sharma IS convicted and sentenced to RI for ten years under section 304 Part-I of the Indian Penal Code. 23. Mr. Sanjay Kumar Srivastava, the learned APP states that the appellant who has served the sentence of more than fourteen years and three months, with remission, is in custody. 24. Accordingly, the appellant, namely, Ramlal Sharma shall be set free forthwith, if not wanted in connection to any other case. 25. In the result, Cr. Appeal (DB) No. 585 of 2014 is partly allowed to the extent indicated hereinabove. 26. Let lower Court records be transmitted to the Court concerned, forthwith. 27. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.