JUDGMENT : Shree Chandrashekhar, J. In Sessions Trial No. 548 of 2011, Pramod Saw has faced the trial on the charge under section 302 of the Indian Penal Code for causing death of Mukesh Choudhary. He was convicted and sentenced to RI for life and a fine of Rs. 10,000/-under section 302 of the Indian Penal Code with a default stipulation to suffer further SI for six months. 2. The appellant has challenged the judgment of Sessions Court dated 24.01.2018 by filing this criminal appeal under section 374(2) of the Code of Criminal Procedure. 3. On the basis of the fardbeyan of Umesh Choudhary which was recorded at 10:35 AM on 18.06.2011 by S.K. Sao, ASI of Bariatu police station in the unit of Dr. C.B. Sahay at RIMS, Chouparan PS Case No. 56 of 2011 was lodged against the appellant on 18.06.2011 for causing death of Mukesh Choudhary. In course of investigation the witnesses stated before the police that Pramod Saw picked up an iron rod lying outside the house of Mukesh Choudhary and mounted murderous attack on him. Some of the witnesses have also stated before the police that at the instigation of his parents Pramod Saw started assaulting Mukesh Choudhary. Dr. Binay Kumar who conducted the postmortem examination over the dead body of Mukesh Choudhary found three antemortem injuries caused by hard and blunt substance and in his opinion death was caused due to head injury about 18 hrs. + 6 hrs. from the time of postmortem examination. 4. After the investigation a charge sheet was laid against Pramod Saw and as noticed above he has faced the trial on the charge of committing murder of Mukesh Choudhary. 5. The prosecution has examined eight witnesses during the trial to prove the charge under section 302 of the Indian Penal Code. PW1-Sharda Mossomat is mother, PW2-Shintu Kumar Choudhary is nephew and PW3-Umesh Choudhary is cousin of the deceased. PW4-Keshari Sao and PW5-Indradeo Sao who are the co-villagers of the informant did not support the prosecution during the trial and they were declared hostile. PW7, Nisad Khan is the Investigating Officer who has stated in his cross-examination that there was one day's delay in sending the First Information Report in the Court and he did not issue requisition from Chouparan police station for treatment of Mukesh Choudhary. PW7, Nisad Khan is the Investigating Officer who has stated in his cross-examination that there was one day's delay in sending the First Information Report in the Court and he did not issue requisition from Chouparan police station for treatment of Mukesh Choudhary. He has further stated that in course of investigation blood-stained iron rod or cloth of the injured was not collected. 6. The learned Additional Sessions Judge-III, Hazaribag has held that the defence could not bring out anything substantial in the testimony of the prosecution witnesses so as to disbelieve them, rather PW1, PW2 and PW3 are natural witnesses and PW6 is an independent witness. 7. In paragraph No. 22 of the judgment under challenge, the learned Trial Judge has appreciated the materials laid by the prosecution in the trial in the following manner: “22. From the oral testimony of P.W.3 who is an informant and maternal brother of deceased stated that the occurrence is dt.16.6.11 at evening 7.00-7.30 hours, and on the said day he came to the house of Fufa and he was sitting on roof, at that time Pramod Sao near about 6.30 hours came to Mukesh house, and started scuffle with Mukesh and abusing started also then he came from the roof and perceive to both. Then Mukesh ousted Pramod from the house, and at that time father and mother also came and Pramod father said assault to Pasi. In this series, rod of iron kept outside of Mukesh house, Pramod taken and given 3-4 blows by rod on Mukesh head. The injury caused on Mukesh head, shoulder etc. The head was broken and blood oozing and Mukesh fell down in senseless condition, and during the treatment in RIMS Ranchi Mukesh was died in night at 8.45 hours. As such P.W.3 eye witness it is also quit clear that the accused committed the murder of deceased by assaulted rod on his head. The evidence of informant P.W.3 is corroborated by P.W2 Sintu Choudhary who is the deceased sister son eye witness stated the occurrence took place on 16.6.11, and the time was 7.00 PM and he was in the house. Pramod Sao came to his house and started scuffle with Mama Mukesh. Choudhary, when Mama said to go out than Pramod Sao puled out and started abusing. Pramod Sao came to his house and started scuffle with Mama Mukesh. Choudhary, when Mama said to go out than Pramod Sao puled out and started abusing. Pramod Sao mother and father came shouting, and said that "assault Pasiko" than Pramod Sao assaulted to Mukesh head with rod 2-3 blows for which he fell down. The same is also corroborated by P.W. 1 Sharda Mossomat deceased mother who has stated that Mukesh Choudhary was her only son. Pramod Sao S/O Kameshwar Sao came to her house and sit and started scuffle with her son, then her son said to go and Pramod Sao also abused to her son. Her son dragged out to Pramod, in the meantime Kameshwar Sao and his wife came and said to assault, what Pasi will do. On her door Pramod taken the rod and inflicted 2-3 blows on his head. During the cross-examination in para 34 also stated that Pramod assaulted two blows on the middle of the head and not from the front side of the head. The head was not opened rather broken with two places. Therefore, this eye witness is also corroborated that the accused assaulted to her son by rod with intention to murder. The same is also corroborated by medical evidence exhibit-5 postmortem report which is proved PW-8, Dr. Binay Kumar, who conducted the postmortem of deceased Mukesh Choudhry and found external Injuries: Abrasion-(I) 7 CM X 5 CM over lateral aspect of right elbow, (ii) 5 CM X 3 CM over left shoulder top.(iii) Lacerated Stitched wound: (1) 1 CM X 1/2 CM X bone deep over frontal scalp in middle part. There is diffuse contusion of whole scalp and both temporal is muscle. There is depressed fracture of fronto – parietal bone in middle of 12 CM X 5 CM size. There is depressed and communited fracture of fronto -parietal -temporal -occipital bone in both sides. There is extradural blood and blood clot measuring 20 CM X 15 CM X 3 CM over entire brain surface except frontal lobe. Both sides of the brain are diffusely contused with presence of subdural blood and blood clot diffusely in both sides but more in left side. The medical opinion it that the injuries Caused by hard and blunt substance and the region of death is due to head injury. Both sides of the brain are diffusely contused with presence of subdural blood and blood clot diffusely in both sides but more in left side. The medical opinion it that the injuries Caused by hard and blunt substance and the region of death is due to head injury. Therefore, for the medical evidence the death of deceased was due to head injury and the prosecution case is also that the accused assaulted to deceased head by rod and the medical evidence is also show caused by hard and blunt substance. The prosecution case is not only corroborated by medical evidence and ocular evidence of P.W.1, P.W.2 and P.W.3 but also by P.W.6 Jugal Kishore Rana independent eye witness who has stated that the occurrence took place on 16.6.11 and the time was 7-8 hours in the night and at that time he was sitting outside the house by the side of the road. In the meantime, heard sound to the house of Mukesh, then went to the house of Mukesh Choudhary and saw Mukesh mother and Mukesh wife and Mukesh Choudhary altogether ousted Pramod Sao from the house. Then Pramod Sao came out from the door, and a rod which was kept near to door taken over, and assaulted to the head of Mukesh Choudhary 2-3 places. Mukesh Choudhary fallen down after getting injury, then his mother, wife and one relative Umesh Choudhary taken to four-wheelers for treatment. Mukesh head was broken and blood was oozing. The cloth was also wet. Mukesh became senseless. After two days got knowledge that Mukesh is died for the injury. In Para 13, stated that he see the occurrence with his eyes. P.W.7 Nisad Khan, is the IO of the case who has also proved the place of occurrence and also proved the case of prosecution. Further criticism about motive of the occurrence was taken place due to quarrel as per fardbyan of P.W. 3 informant eye witness exhibit -3.” 8. The learned Trial Judge has finally held as under: “23. However, going by the entire prosecution evidence there is nothing in it to disbelieve the testimony of prosecution witness such as P.W.1, P.W.2, P.W.3, P.W.6 to P.W.8 not any material defect was pointed out by the defence to disbelieve their testimony.” 9. The learned Trial Judge has finally held as under: “23. However, going by the entire prosecution evidence there is nothing in it to disbelieve the testimony of prosecution witness such as P.W.1, P.W.2, P.W.3, P.W.6 to P.W.8 not any material defect was pointed out by the defence to disbelieve their testimony.” 9. PW1 who is the mother of Mukesh Choudhary has stated that Pramod Saw came to her house and started a quarrel with her son and when her son asked him to leave the house he started abusing him. Her son dragged Pramod Saw out of the house and in the meantime parents of Pramod Saw also came there and exhorted him to beat her son, whereupon Pramod Saw picked up an iron rod lying at the door and gave 2-3 blows on her son. On her raising hulla her nephew came there and brought her son to Hazaribag Hospital from where he was referred to Ranchi. PW2 who is the nephew of Mukesh Choudhary has deposed in the Court that Pramod Saw came in the house of his maternal uncle and started a quarrel with him and on instigation of his parents Pramod Saw assaulted his maternal uncle. The injured was brought to Chouparan police station from where he was sent to Sadar Hospital, Hazaribag for treatment and thereafter he was referred to RIMS, Ranchi. From paragraph No. 12 of cross-examination of the Investigating Officer it would appear that PW2 has stated several new facts when he was examined in the Court. PW3 is the informant of this case and he has fully supported the prosecution case. In the Court he has narrated the incident of the evening of 16.06.2011 at the house of his cousin Mukesh Choudhary. 10. In the cross-examination of these witnesses the defence could elicit some important statements which may be relevant for the purpose of examining the nature of offence but on presence of the appellant at the house of Mukesh Choudhary on 16.06.2011 and assault by him with an iron rod these witnesses have tendered cogent and creditworthy evidence. There is no reason to disbelieve their testimony insofar as their claim of being eyewitnesses to the occurrence is concerned. 11. PW6 who is an independent witness has supported and corroborated the evidence tendered by PW1, PW2 and PW3. There is no reason to disbelieve their testimony insofar as their claim of being eyewitnesses to the occurrence is concerned. 11. PW6 who is an independent witness has supported and corroborated the evidence tendered by PW1, PW2 and PW3. He has deposed in the Court that in the evening of 16.06.2011 he was sitting outside his house. On hearing sound of quarrel coming from the house of Mukesh Choudhary he went there and found that Mukesh Choudhary, his wife and mother were pushing Pramod Saw out from their house. Pramod Saw picked up an iron rod lying near the door and struck 2-3 blows on the head of Mukesh Choudhary, who was taken to the hospital for treatment. He has further stated that blood was oozing from the head of Mukesh Choudhary and his cloth was completely drenched with blood. 12. Though the Investigating Officer did not collect the blood-stained iron rod and cloth of Mukesh Choudhary, the learned Trial Judge has rightly accepted the evidence tendered by these witnesses — recovery and production of the crime weapon is not a sine qua non for a prosecution for murder [refer: “Rakesh v. State of U.P.” 2021 SCC OnLine SC 451]. We find that though the co-villagers have turned hostile the other evidences produced by the prosecution are sufficient to hold that the appellant did assault Mukesh Choudhary with an iron rod. This part of the prosecution story gets ample support from the doctor who conducted the postmortem examination. 13. However conviction of the appellant under Section 302 of the Indian Penal Code is not proper in law. 14. Mr. Arwind Kumar, the learned counsel for the appellant submits that the prosecution has failed to lay such evidence as to establish that the appellant intended to cause death, or intended a particular injury which was sufficient to cause death, or had knowledge that his act was so imminently dangerous that in all probability it would cause death and while so conviction of the appellant under section 302 of the Indian Penal Code is not proper and sustainable in law. 15. In “Surinder Kumar v. Union Territory, Chandigarh” (1989) 2 SCC 217 , the Hon'ble Supreme Court has held that for the applicability of Exception 4 to section 300 of the Indian Penal Code the following ingredients must be satisfied: “7. 15. In “Surinder Kumar v. Union Territory, Chandigarh” (1989) 2 SCC 217 , the Hon'ble Supreme Court has held 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.............................” 16. PW8, Dr. Binay Kumar who conducted the postmortem examination on 18.06.2011 at 12:00 noon has recorded the following observations in the postmortem report: “Abrasion:(1) 7 cm x 5 cm over lateral aspect of right elbow, (2) 5 cm x 3 cm over left shoulder top. Lacerate stitched wound: (1) 1 cm x 1/2 cm x bone deep over frontal scalp in middle part. There is diffuse contusion of whole scalp and both temporal muscle. There is depressed fracture of fronto-parietal bone in middle of 12 cm x 5 cm size. There is depressed and comminuted fracture of fronto-parietal-temporo-occipital bone in both sides. There is extradural blood and blood clot measuring 20 cm x 15 cm x 3 cm over entire brain surface except frontal lobe. Both sides of the brain are diffusely contused with presence of subdural blood and blood clot diffusely in both sides but more in left side. There is intracerebral blood and blood clot in left cerebral hemisphere at places. Stomach contains semi digested food materials in pasty form about 50 gm. Both sides of the brain are diffusely contused with presence of subdural blood and blood clot diffusely in both sides but more in left side. There is intracerebral blood and blood clot in left cerebral hemisphere at places. Stomach contains semi digested food materials in pasty form about 50 gm. Opinion: (1)Above noted injuries are ante-mortem in nature, (2) caused by hard and blunt substance or substances, (3) death is due to head injury, (4) Time elapsed since death is 18 hours + 6 hours from the time of post-mortem examination. On general examination: Body was average built. Rigor mortis present all over the body. Abdomen slightly distended, cornea transparent to hazy, post mortem hypostasis fully developed and fixed. Foley's catheter in situ. Intravenous cannula in left wrist. Head shaved. Both eyes are black.” 17. The doctor has found three injuries out of which two are abrasions over right elbow and left shoulder. 18. PW8 has found diffused contusion of scalp and temporal muscle. He has observed depressed fracture of fronto – parietal bone in mid line of the size of “12cm x 5cm”. There was depressed and comminuted fracture of fronto -parietal-temporo-occipital bone on both sides, and extradural blood and blood clots in the area of “20 cm x15 cm x 3 cm” over entire brain surface except frontal lobe. 19. Referring to this observation of PW8, Mr. Ashok Kumar, the learned APP submits that the extent of head injury and repeated blow by the appellant upon Mukesh Choudhary would rule out the applicability of Exception 4 to section 300 of the Indian Penal Code. 20. In “Surinder Kumar”, a quarrel had ensued in the kitchen and the accused assaulted his friend. Out of three injuries two injuries were simple in nature. The Hon’ble Supreme Court has observed that presence of three injuries would not establish that the accused acted with cruelty or had taken undue advantage of the situation. 21. Mukesh Choudhary was first taken to Chouparan police station from where he was sent to Sadar Hospital, Hazaribag. Whether any medical aid was administered to him at home or at the police station is not known. The prosecution has failed to bring on record injury report prepared at Sadar Hospital and the Investigating Officer did not examine the doctor and other support staff who had attended Mukesh Choudhary at Hazaribag. Whether any medical aid was administered to him at home or at the police station is not known. The prosecution has failed to bring on record injury report prepared at Sadar Hospital and the Investigating Officer did not examine the doctor and other support staff who had attended Mukesh Choudhary at Hazaribag. PW8 has found lacerated stitched wound but the doctor who had attended him at RIMS, Ranchi was also not produced in the Court. No doubt the depressed and comminuted fracture of fronto -parietal bone over the head appear dangerous and life-threatening, but in the absence of materials regarding previous treatment administered to Mukesh Choudhary it is quite difficult and dangerous to some extent to hold that the appellant can be imputed with the knowledge that his act was so imminently dangerous that in all likelihood it would have caused death. 22. From the materials laid during the trial in Sessions Trial No. 548 of 2011, we find that the witnesses have spoken about friendship between the appellant and Mukesh Choudhary and in their evidence there is no hint of enmity between the two. The appellant was not carrying weapon and he assaulted Mukesh Choudhary when he was trying to push him out of the house. The witnesses have spoken in the Court that there was a quarrel between the two and at exhortation of his parents Pramod Saw gave 2-3 blows to Mukesh Choudhary with the iron rod. From these facts, we infer that his act was not premeditated. He did not attempt to assault Mukesh Choudhary on other vital parts of his body and from the prosecution evidence it appears that at the spur of the moment in the heat of passion the appellant has assaulted Mukesh Choudhary – the blow on his head has unfortunately proved fatal. 23. In the above facts, we are satisfied that the appellant cannot be held liable for murder rather he is entitled for the benefit under Exception 4 to section 300 of the Indian Penal Code. 24. Accordingly, the judgment of conviction under section 302 of the Indian Penal Code dated 24.01.2018 and the order of sentence of RI for life and a fine of Rs. 10,000/-for the said offence dated 25.01.2018 against the appellant, namely, Pramod Saw passed by the learned Additional Sessions Judge-III, Hazaribag in Sessions Trial No.548 of 2011 are set-aside. 25. 24. Accordingly, the judgment of conviction under section 302 of the Indian Penal Code dated 24.01.2018 and the order of sentence of RI for life and a fine of Rs. 10,000/-for the said offence dated 25.01.2018 against the appellant, namely, Pramod Saw passed by the learned Additional Sessions Judge-III, Hazaribag in Sessions Trial No.548 of 2011 are set-aside. 25. The appellant, namely, Pramod Saw is convicted and sentenced to RI for 7 years under section 304 Part-II of the Indian Penal Code. 26. Mr. Ashok Kumar, the learned APP states that the appellant is in custody for more than ten years. 27. Accordingly, the appellant, namely, Pramod Saw shall be set free forthwith, if not wanted in connection to any other case. 28. In the result, Cr. Appeal (DB) No. 763 of 2018 is allowed to the aforesaid extent. 29. IA No. 1755 of 2020 and IA No. 2831 of 2021 stand disposed of. 30. Let lower Court records be transmitted to the Court concerned, forthwith. 31. Let a copy of the Judgment be transmitted to the Court concerned through FAX.