JUDGMENT : Sujit Narayan Prasad, J. 1. These three appeals arise out of the same impugned judgment of conviction and sentence, as such, directed to be listed together for analogous hearing. 2. All the three appeals are being taken up together. 3. At the outset, learned counsel appearing for the appellants has submitted that the appellant Manoranjan Guha, Appellant No.2 of since has died in course of pendency of the appeal, therefore, the appeal may be abated so far as it relates to Appellant No.2 Manoranjan Guha is concerned. 4. Accordingly, Criminal Appeal (DB) No.667 of 2011 stands abated so far as it relates to appellant Manoranjan Guha. 5. The Criminal Appeal (DB) No.667 of 2011 is, therefore, confined to only appellant Smt. Bani Guha @ Bani Rani Guha. 6. It has been informed to this Court on behalf of Appellant No.1 Smt. Bani Guha @ Bani Rani Guha of Criminal Appeal (DB) No.667 of 2011 that she has been directed to be released on bail on suspension of sentence vide order dated 30.01.2012. 7. So far as the appellant of Criminal Appeal (DB) No.634 of 2011, namely, Biswajit Guha is concerned, he has also been directed to be released on bail on suspension of sentence vide order dated 30.01.2012. 8. Therefore, only Debjit Guha @ Deojeet Guha, appellant in Criminal Appeal (DB) No.685 of 2011 is in custody 2009. 9. The appeals are directed Judgment of conviction dated 1st December, 2011 and Order of sentence dated 2nd December, 2011, passed by learned Sessions Judge-II, Jamshedpur, in Sessions Trial Case No.341 of 2009 arising out of Potka P.S. Case No.24 of 2009 (G.R. Case No.985 of 2009) registered under Section 302/323/379/34 of the Indian Penal Code for committing murder of Ranjit Guha on 24.04.2009 in the house of accused Manoranjan Guha which culminated into the judgment of conviction under Section 302 of the Indian Penal Code (IPC) convicting accused/appellant namely, Deojeet Guha appellant in Cr. Appeal (DB) No.685 of 2011 and convicting other accused persons namely Biswajit Guha, appellant in Cr. Appeal (DB) No.634 of 2011, Bani Guha and Manoranjan Guha (since deceased), appellants in under section 302/34 of the Indian Penal Code. Further accused persons namely Deojeet Guha and Biswajit Guha have also been convicted under section 323 of the IPC and accused/appellant Debjit Guha has been convicted under section 379 of the IPC. Appeal (DB) No.634 of 2011, Bani Guha and Manoranjan Guha (since deceased), appellants in under section 302/34 of the Indian Penal Code. Further accused persons namely Deojeet Guha and Biswajit Guha have also been convicted under section 323 of the IPC and accused/appellant Debjit Guha has been convicted under section 379 of the IPC. Accordingly, Deojeet Guha has been directed to undergo rigorous imprisonment for life with fine of Rs.10,000/- for the offence committed by him under Section 302 I.P.C. The other convicts, namely, Biswajit Guha, Bani Guna and Manoranjan Guna are also sentenced to undergo rigorous imprisonment for life for the offence committed by them under Section 302/34 I.P.C. with the fine of Rs.10,000/- each. In default of payment of fine, all the convicts have been directed to undergo S.I. for six months. No sentence has been awarded to the convicts for the offence committed by them under Section 323 and 379 I.P.C. because the above sentence will serve the purpose. 10. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as :- 11. According to the fardbayan of the informant, Nupur Guha recorded by Bistupur Police at T.M.H. Police Camp, the case of the prosecution was that the husband of the informant and accused Manoranjan Guha were own brothers and they had some land in village-Bara Deoli and in that land, there is a Dugri (a small hill of stone chips). In that Dugri accused persons had engaged labourers for breaking stone. The son of the informant Ranjit Guha went there and objected on the ground that he had also share in that Dugri. This occurrence took place on 22-4-2009 and it was agreed upon that after compromise further stone will be broken. On 23rd April, 2009 son of the informant engaged two labourers for breaking stone in the Dugri and he proceeded for Tatanagar. On 24th April 2009 when the labourers went there to break stone, accused Manoranjan Guha and his family members did not allow the labourers to do the same and they were chased away. One Arbind Biswas informed regarding the occurrence to Ranjit Guha on telephone. Ranjit Guha at 12 O'Clock came from Tatanagar and went to village- Bara Deoli and after compromise at 3:00 p.m. he proceeded for Tatanagar by his motorcycle. One Arbind Biswas informed regarding the occurrence to Ranjit Guha on telephone. Ranjit Guha at 12 O'Clock came from Tatanagar and went to village- Bara Deoli and after compromise at 3:00 p.m. he proceeded for Tatanagar by his motorcycle. Accused Manoranjan Guha and Deojeet Guha followed this Ranjit Guha and at a distance of eight kilometers from the village, they took back Ranjit Guha to the village for further talk of compromise. At about 5:00 p.m. the talk of compromise started. In course of talk accused Manoranjan Guha and his wife Bani Guha caught hold the son of the informant namely Ranjit Guha and accused Deojeet Guha assaulted the deceased Ranjit Guha on his head with wooden plank. The deceased fell down on the ground and blood was oozing out from his head. Accused Deojeet Guha assaulted him on his head with wooden plank again and as a result of this assault deceased became senseless. The husband of the informant raised hulla on which Biswajit Guha assaulted him with danda and Deojeet Guha also assaulted him by means of danda. The husband of the informant sustained injury. When the informant tried to save them, she was also assaulted by Deojeet Guha by means of danda and she sustained head injury. She fell down on the ground then Biswajit Guha took her mobile, one golden ring and one chain. In the meantime, villagers assembled there and at their intervention the assault was stopped. The informant by telephone informed Prasanjit Guha regarding the occurrence and asked him to come with the police. The son of the informant, Prasanjit Guha came to the village informing the Officer in Charge of Police Station. Thereafter, the deceased, informant and others were brought to Tara Sewa Sadan by Prasanjit Guha for treatment and from there injured persons were referred to T.M.H. where at 10:40 p.m. doctor declared Ranjit Guha brought dead. The informant was treated at T.M.H. 12. On the basis of the fardbayan of the informant, Potka Police instituted a case against all the accused persons under Section 302/323/379 and 34 IPC vide Potka P.S. Case No. 24/2009 dated 25/4/2009 corresponding to G.R.Case No. 985/2009 and after due investigation submitted chargesheet against them. 13. After cognizance of the offence, the case was committed to the Court of Sessions. 13. After cognizance of the offence, the case was committed to the Court of Sessions. Charges under Sections 302/34, 323/34 and 379 of the IPC were framed to which the accused persons pleaded not guilty and claimed to be tried. 14. The prosecution has altogether examined 08 witnesses. The Defence has also examined 02 witnesses in support of defence. The learned trial court, on appreciation of the evidences produced on behalf of the prosecution and defence, has found the allegation proved beyond all reasonable doubt and accordingly, passed the judgment of conviction which is impugned in these appeals. Argument on behalf of appellants 15. The following grounds have been taken in assailing the impugned judgment of conviction: - (i) That the prosecution has miserably failed to establish the charge said to be proved beyond all reasonable doubt. (ii) The prosecution has also failed to appreciate that it is not a case where any ingredient of Section 302 I.P.C. is available. (iii) The learned trial court has also failed to appreciate the fact that it is a case based upon enmity between both the parties regarding the dispute over mining operation in the joint landed property. (iv) The learned trial court has also failed to appreciate that the commission of crime of murder is only on the basis of the heat of passion in a sudden quarrel which took place during the course of negotiation of compromise between both the parties, since, it has come in the testimony of the Investigating Officer that the sword was said to be in the hands of the deceased. The Investigating Officer has also deposed about the sign of sword in the frame of the door where the commission of crime of murder was committed. (v) The prosecution has also failed to establish the charge since even though appellant Deojeet Guha has also sustained serious multiple injuries but there is no investigation on the part of the Investigating Officer in order to come to the conclusion about the exact cause of injuries of the appellant Deojeet Guha. (vi) The commission of crime cannot be said to be conclusively proved in absence of any corroboration by not sending the wood (wooden plank), said to be used in commission of crime of assaulting the deceased, to the Forensic Science Laboratory. (vi) The commission of crime cannot be said to be conclusively proved in absence of any corroboration by not sending the wood (wooden plank), said to be used in commission of crime of assaulting the deceased, to the Forensic Science Laboratory. (vii) The learned counsel for the appellant, based upon the aforesaid ground, has submitted that the impugned judgment suffers from illegality, hence not sustainable in the eyes of law. (viii) In alternative, it has been argued that even accepting the case of the prosecution to be true, even then, since the injury has been sustained by one of the appellants, namely, Deojeet Guha, which has been corroborated by two defence witnesses, namely, Dr. Rajkumar Prasad and Dr. N.C. Sahu and hence, it can be said that at best it is a case under section 304 Part-II of the IPC. Argument on behalf of the State and the informant 16. While defending the judgment of conviction learned counsel appearing for the State and the informant have raised the following arguments in response to the grounds as referred hereinabove,:- (i) It is a case where the prosecution has been able to prove the charge beyond all reasonable doubt, since the assault admittedly was inflicted upon the deceased in the house of Deojeet Guha, appellant of Cr. Appeal (DB) No.685 of 2011. (ii) The place of occurrence has conclusively been proved to be the house of accused persons. (iii) All the prosecution witnesses have conclusively supported the prosecution version, particularly, one independent witness, namely, PW-1 Sona Ram Hansda, who was working as a labour in the house of the deceased. (iv) Apart from PW-1 Sona Ram Hansda, the other witnesses have also conclusively corroborated the prosecution version. (v) The prosecution has been able to prove the charge of having enmity and it has come in the testimony of the prosecution witnesses that the appellants have called the deceased to their house for negotiation and in course thereof the assault was given due to which Ranjit Guha succumbed to injury. (vi) The Investigating Officer has corroborated the occurrence by supporting the testimony of the prosecution witnesses as also the occurrence has been corroborated by the medical evidence wherein the Doctor has found the nature of injuries having been caused by hard and blunt substance and the injury has also been found over the dead body of the deceased. (vi) The Investigating Officer has corroborated the occurrence by supporting the testimony of the prosecution witnesses as also the occurrence has been corroborated by the medical evidence wherein the Doctor has found the nature of injuries having been caused by hard and blunt substance and the injury has also been found over the dead body of the deceased. (vii) The contention has been raised, in response to the submission made on behalf of the appellants that one of the appellants, namely, Deojeet Guha, appellant of Cr. Appeal (DB) No.685 of 2011, has also sustained injury but there is no investigation on that point and hence, the entire prosecution version is vitiated but such argument cannot be said to be acceptable, it is for the reason that there is no counter F.I.R. as also no question has been raised to that effect from any of the witnesses including the Investigating Officer. (viii) Learned counsel appearing for the State and the informant, based upon the aforesaid premise, has submitted that the impugned judgment does not suffer from any error, hence the instant appeals are fit to be dismissed. 17. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned judgment. 18. We have also gone through the testimonies of the witnesses as available in the LCR as also the exhibits. 19. This Court, before appreciating the argument advanced on behalf of the parties as also the legality and propriety of the impugned judgment, deems it fit and proper to refer the testimonies of the prosecution witnesses. 20. PW-1 Sona Ram Hansda, an independent witness, has supported the case of prosecution. It has been deposed by him that while he was in the house of Ranjit Guha, the deceased, at that time Deojeet Guha came and called Ranjit Guha. The houses of Deojeet Guha and Ranjit Guha were adjacent to each other. The deceased Ranjit Guha along with his parents had gone to the house of Deojeet Guha. He deposed that he had also gone to the house of Deojeet Guha following them. He further deposed that in the house of Deojeet Guha, the discussion started and in course thereof, the parents of Deojeet Guha caught hold of Ranjit Guha. Appellant Manoranjan Guha, (since deceased), asked his son Deojeet Guha to kill Ranjit Guha. He deposed that he had also gone to the house of Deojeet Guha following them. He further deposed that in the house of Deojeet Guha, the discussion started and in course thereof, the parents of Deojeet Guha caught hold of Ranjit Guha. Appellant Manoranjan Guha, (since deceased), asked his son Deojeet Guha to kill Ranjit Guha. Upon which, Deojeet Guha had assaulted Ranjit Guha over his head with one wood. Ranjit Guha fell down and bleeding started from his head. Deojeet Guha again assaulted the deceased. When the father of Ranjit Guha had tried to save, Deojeet Guha also assaulted him. The mother of Ranjit Guha was also assaulted when she tried to save the life of her son. 21. In his cross-examination, as under paragraph 13 of his statement, he supported his version of calling of Ranjit Guha, the deceased, to the residence of deojeet Guha. At paragraph 14 he deposed that the mother and father of Ranjit Guha had not been called but all the three had gone. In paragraph 15 it had been deposed by him that the assault was inside the house. In para 16 it had been deposed that the assault was made in the courtyard. In paragraph 18 he deposed that at that time he was standing near a tree. In para 21 he deposed that he had stated before the police that the mother and father of Deojeet Guha had asked Deojeet Guha to kill Ranjit Guha. In para-22 he also corroborated of assaulting the deceased who had been seen from the distance of about 40 feet. At paragraph 26 it had been deposed that two assaults were given by Deojeet Guha over the head of the deceased Ranjit Guha. Thus, it is evident from the versions of PW1 that during course of discussion the alleged assault was inflicted by the appellant upon the deceased. 22. PW-2 Prasanjit Guha is the elder brother of the deceased and he is hearsay witness and he got the information over telephone that Ranjit Guha was brutally assaulted by Deojeet Guha, Biswajit Guha, their father Manoranjan Guha and mother Bani Guha. Thereafter, he came home and saw his brother lying on the ground suffering from serious injury. In the cross-examination at paragraph 10 he deposed that there was ancestral property. Thereafter, he came home and saw his brother lying on the ground suffering from serious injury. In the cross-examination at paragraph 10 he deposed that there was ancestral property. He also deposed that at the time of occurrence the relationship in between both the families were not congenial. At para-18 he deposed that earlier he had filed case against Deojeet Guha and Biswajit Guha. 23. PW-3 Nupur Guha is the mother of the deceased who has supported the prosecution version by deposing that at about 5:00 pm in the evening, while she was in the house situated at Deoli and her husband and younger son, namely, Ranjit Guha, were in the house, at that time, Deojeet Guha and Manoranjan Guha, came to her house and called Ranjit Guha. Ranjit Guha had gone to the house of Deojeet Guha and Manoranjan Guha. She deposed that she along with her husband had also gone and following them Sona Ram Hansda and Dilip Mardy had also gone to the house of Deojeet Guha. She deposed that there was discussion on the issue of Dugri and in that course when the discussion was going on, Bani Guha and Manoranjan Guha both caught hold of Ranjit Guha and asked Deojeet Guha to kill him. Upon which Deojeet Guha had assaulted from a wood used for closing the door, thereby there was profuse bleeding from the head. The deceased fell down and thereafter, second assault was given by Deojeet Guha due to which Ranjit Guha became senseless. 24. She further deposed that when she had tried to protect Ranjit Guha, she was also assaulted. Her husband was also assaulted. She and her husband both sustained injuries. She thereafter fell down. Biswajit Guha had snatched away the mobile phone, golden ring and gold chain. She further deposed that thereafter she, her husband, Dilip Mardy have carried the injured Ranjit Guha to their house and in course thereof, there was profuse bleeding. The deceased was carried to the T.M.H. hospital where he succumbed to injury. She was also treated at T.M.H. hospital. 25. PW-4 Shyamal Guha, the father of the deceased, corroborated the prosecution version and reiterated the same version which was deposed by Nupur Guha, mother of the deceased. He deposed at paragraph 9 that he had also sustained injury in his right hand for which he had taken treatment by getting x-ray etc. She was also treated at T.M.H. hospital. 25. PW-4 Shyamal Guha, the father of the deceased, corroborated the prosecution version and reiterated the same version which was deposed by Nupur Guha, mother of the deceased. He deposed at paragraph 9 that he had also sustained injury in his right hand for which he had taken treatment by getting x-ray etc. It had been stated at paragraph-24 that he had disclosed before the police that for last 3 – 4 days they were in the Bada Deoli house. He further deposed that on 24.04.2009 Ranjit Guha was called over telephone to come from Parsudih for the purpose of compromise and they had gone to the house of the appellants. 26. PW-5 Arvind Biswas is hearsay witness. 27. PW-6 Dr. Vibhakar Kumar is the Doctor who has conducted the post-mortem on the dead body of Ranjit Guha and has found the anti-mortem injuries caused by hard and blunt substance. He has proved the post-mortem report marked as Ext.2. 28. PW-7 Dr. Atul Chhabra, is the Doctor who had examined Nupur Guha, PW-3 and found injuries. He opined that injury may be caused hard and blunt substances. He has proved the injury report marked as Ext.3. He has further deposed that the medical report is in his pen and bears his signature marked as Ext-3/1. In cross-examination at para-6 he has deposed that the injury may be caused due to collision on wall or hard surface. At para-8 he stated that if there is no fracture it can be said that the nature of injuries are simple. 29. PW-8 Mahesh Prasad is the Investigating Officer. He has stated that the inquest report was prepared by him. It was marked as Ext.6. He has found the mark of blood near the door of the house of the appellants. He has deposed at paragraph-11 that in course of investigation he had seen a cut mark at the door frame. The witnesses had disclosed that the same was occurred from the point of the sword. At paragraph 12 it has been deposed by the Investigating Officer that witnesses have disclosed that the deceased was having with the sword in his hand and the cut mark in the doorframe was due to said sword. The witnesses had disclosed that the same was occurred from the point of the sword. At paragraph 12 it has been deposed by the Investigating Officer that witnesses have disclosed that the deceased was having with the sword in his hand and the cut mark in the doorframe was due to said sword. At paragraph-16 he has deposed of taking statement of Sona Ram Hansda PW-1 who has not stated to have said to him in course of investigation that the father of Deojeet Guha had asked to kill Ranjit Guha, the deceased. It has further been stated at paragraph 18 that at the time of recording statement of Sona Ram Hansda PW-1 the informant was along with him. At paragraph 20 it has been deposed by him that PW-3 has not disclosed in her statement that while going to the house of the appellants, Sona Ram Hansda and Dilip Mardy had also followed her to appellant’s house. At para-22 he has deposed that Shyamal Guha (P.W.4) has not stated to him that Sona Ram Hansda and Dilip Mardy followed him when he was going to the house of the appellant. He has also testified that he has not seized the earth or blood stained cloth from the place of occurrence. He further deposed that the wood which was said to be used in the commission of crime has not been found and as such has not been seized. 30. Since the defence has also examined 02 witnesses, therefore, the same is also being referred herein :- 31. DW-1 Dr. Rajkumar Prasad is the Doctor who had treated Deojeet Guha, appellant of Cr. Appeal (DB) No.685 of 2011, in the jail as outdoor patient. He had prescribed certain medicines and prepared injury report which has been marked as Ext.B. He has further deposed that thereafter Deojeet Guha was referred to the Medical Board and the said document has been marked as Ext.C. He has deposed that he has found multiple injuries on the body of Deojeet Guha and further deposed that injury no.(i) may be caused by Talwar(sword). 32. DW-2 Dr. N.C. Sahu is the Doctor who had treated Deojeet Guha since he was having head injury. Injury was on occipital region. The injury report was prepared and marked as Ext. D. 33. 32. DW-2 Dr. N.C. Sahu is the Doctor who had treated Deojeet Guha since he was having head injury. Injury was on occipital region. The injury report was prepared and marked as Ext. D. 33. Learned trial court, based upon the testimonies of eye witnesses, referred hereinabove, has passed the judgment of conviction convicting the appellants under Section 302 and 302/34 of Indian Penal Code and directed to undergo R.I. for life. 34. This Court, in order to appreciate the submissions advanced on behalf of all the appellants with respect to the culpability of the appellant, of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis-à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II. 35. The Hon'ble Apex Court has dealt with the aforesaid position in the case of Surinder Kumar v. Union Territory, Chandigarh reported in (1989) 2 SCC 217 wherein paragraph 6 and 7 are relevant which are being referred hereunder as :- “6. Exception 4 to Section 300 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.” 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. 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. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to hand over possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appellant's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occasions under Section 411 IPC and his name was registered as a bad character at the local police station. It was presumably because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the fifth rib about 2” below the nipple. It may incidentally be mentioned that the trial court came to the conclusion that the injury found on the neck of PW 2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under Section 307 IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC and direct him to suffer rigorous imprisonment for 7 years.” 36. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 it has been held that the intention is different from motive. Under these circumstances, we think it proper to convict the accused under Section 304, Part I IPC and direct him to suffer rigorous imprisonment for 7 years.” 36. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder, for ready reference paragraph 11 is being quoted and referred hereunder as :- “11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 ], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32 ] , para 12, this Court held as under: (SCC p. 41) “12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 ], observed thus: (SCC p. 620, para 7) ‘7. … These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 ], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.’ The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465 ] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.” 37. In the case of Murlidhar Shivram Patekar and Another v. State of Maharashtra reported in (2015) 1 SCC 694 it has been held be Hon'ble Apex Court at paragraph 28 and 29 which reads hereunder as :- “28. In the case of Murlidhar Shivram Patekar and Another v. State of Maharashtra reported in (2015) 1 SCC 694 it has been held be Hon'ble Apex Court at paragraph 28 and 29 which reads hereunder as :- “28. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 to Section 300 IPC. In Surinder Kumar [Surinder Kumar v. UT, Chandigarh, (1989) 2 SCC 217 ] , this Court has held as under: (SCC p. 220, para 7) “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.” (emphasis supplied) 29. Further, in Arumugam v. State [ (2008) 15 SCC 590 at p. 595 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, para 9) “9. … ‘18. 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. 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 the Penal Code, 1860. 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 had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.” 38. In the case of Surain Singh v. State of Punjab reported in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court has held which is being referred hereunder as :- “13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A “sudden fight” implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. 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.” 39. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382 , the Hon’ble Apex Court, while clarifying the distinction between section 299 and 300 of the IPC and their consequences, held as under: — “12. In the scheme of the Penal Code, ‘culpable homicide’ is genus and ‘murder’ is species. All ‘murder’ is ‘culpable homicide’ but not vice-versa. Speaking generally, ‘culpable homicide not amounting to murder’. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called ‘culpable homicide of the first degree’. This is the greatest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.” (Emphasis supplied) 40. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.” (Emphasis supplied) 40. In Pulicherla Nagaraju v. State of A.P., (2006) 11 SCC 444 , wherein the Hon’ble Apex Court enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the accused. The Court observed as under :- “29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters — plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention.” (Emphasis supplied) 41. Recently the Hon’ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under: “66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:— (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. --- (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC. 42. 42. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues :- (i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or (ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? or (iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? Or (iv) Whether the appellants are entitled for acquittal in absence of cogent evidences? 43. Since all the aforesaid issues are inextricably interlinked, the same are being decided herein below by considering them together. 44. The law is well settled that for proving the charge under Section 302 of the Indian Penal Code, it is the bounden duty of the Court to consider the ingredients of culpable homicide as provided under Section 299 of the Indian Penal Code amounting to murder as provided under Section 300 IPC and not amounting to murder as provided under Exception 4 to Section 300 of the Indian Penal Code. 45. Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act – (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death. “intent” and “knowledge” as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person. 46. “intent” and “knowledge” as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person. 46. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as :- “32. For this purpose we have to go to Section 299 which defines “culpable homicide”. This offence consists in the doing of an act (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the act is likely to cause death. 33. As was pointed out by this Court in Anda v. State of Rajasthan [ AIR 1966 SC 148 : 1966 Cri LJ 171] x“intent” and “knowledge” in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mens rea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.” 47. It is, thus, evident that our legislature has used two different terminologies ‘intent’ and ‘knowledge’ and separate punishments are provided for an act committed with an intent to cause bodily injury which is likely to cause death and for an act committed with a knowledge that his act is likely to cause death without intent to cause such bodily injury as is likely to cause death, it would be proper to hold that ‘intent’ and ‘knowledge’ cannot be equated with each other. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‘intent’ and ‘knowledge’ are the same. ‘Knowledge’ will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent. 48. They connote different things. Sometimes, if the consequence is so apparent, it may happen that from the knowledge, intent may be presumed. But it will not mean that ‘intent’ and ‘knowledge’ are the same. ‘Knowledge’ will be only one of the circumstances to be taken into consideration while determining or inferring the requisite intent. 48. Thus, while defining the offence of culpable homicide and murder, the framers of the IPC laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be. 49. The framers of the IPC designedly used the two words ‘intention’ and ‘knowledge’, and it must be taken that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he “must have been aware that certain specified harmful consequences would or could follow.” (Russell on Crime, Twelfth Edition, Volume 1 at page 40). 50. In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of charge under Section 304 Part-II must be at least prima facie indicate that the accused has done an act which has caused death with at least such a knowledge that such act was likely to cause death. 51. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as :- “20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. 51. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (1996) 6 SCC 129 has been pleased to hold as under paragraph 20 which reads hereunder as :- “20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. ---" 52. ---" 52. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or, secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 53. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder which are as follows :- (a) If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won’t amount to murder subject to proviso as provided. (b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention. (c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person. (d) 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. (e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 54. (e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 54. All these exceptions mentioned above shall come under purview of Section 304 and will be termed as culpable homicide not amounting to murder. 55. It is, thus, evident the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside the purview of exception carved out under Section 300 of the Indian Penal Code. 56. In the present case the pleas, inter alia, have been taken on behalf of appellants that during course of negotiations of compromise between the brothers, sudden fight took place, thereby injuries caused to both the parties and the deceased succumbed to the injuries alleged to have been inflicted by appellants and hence it has been contended that it is a case not or murder rather it comes within the purview of exception 4 to Section 300 (murder) of IPC. 57. The parameters for judging the case have been dealt with by Hon'ble Apex Court in the case of Sayaji Hanmat Baukar v. State of Maharashtra, AIR 2011 SC 3172 whereunder the circumstances of the case it has been held that if the act is done without premeditation in a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then exception 4 will be attracted. 58. Law is well settled that in order to attract Exception 4 to Section 300 of IPC, four requirements must be satisfied namely :- (a) It should be sudden fight. (b) There was no premeditation. (c) The act was done in a heat of passion (d) The assailant had not taken any undue advantage or acted in a cruel manner. 59. 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 offence must have taken place in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. 59. 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 offence must have taken place in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. If a person in the heat of a moment on a sudden quarrel picks a weapon which is handy and thereby injuries are caused, one of which proves fatal, he would be entitled to the benefit of this exception 4 to Section 300 of IPC provided he has not acted cruelty. Thus whenever there is a case of sudden fight and conflict, it has to be dealt with under Exception 4 to Section 300 of IPC. 60. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether it is a case under Section 302 or Section 304 Part-I or II by appreciating the evidences vis-à-vis the provisions of murder or exception 4. PW-1 Sona Ram Hansda 61. It would be evident from the testimony of PW-1 Son Ram Hansda, who claims to be an independent witness, has supported the case of prosecution in examination-in-chief before the court. 62. It has been deposed by him that while he was in the house of Ranjit Guha, the deceased, Deojeet Guiha came and called Ranjit Guha, the deceased. The houses of both were just adjacent to each other. The deceased Ranjit Guha along with his parents went to the house of Deojeet Guha, one of the appellants. He deposed that he had also gone to the house of Deojeet Guha following them. 63. He further deposed that in the house of Deojeet Guha, the discussion started and in course thereof, the parents of Deojeet Guha caught hold of Ranjit Guha, the deceased. The father of Deojeet Guha, namely, Manoranjan Guha, (since deceased), asked Deojeet Guha to kill Ranjit Guha. Upon which, the appellant Deojeet Guha by taking out a wood used for closing the door, had assaulted over the head of Ranjit Guha. Ranjit Guha fell down and bleeding started from his head. Deojeet Guha again assaulted the deceased. When the father of Ranjit Guha had tried to save him, Deojeet Guha also assaulted him. Upon which, the appellant Deojeet Guha by taking out a wood used for closing the door, had assaulted over the head of Ranjit Guha. Ranjit Guha fell down and bleeding started from his head. Deojeet Guha again assaulted the deceased. When the father of Ranjit Guha had tried to save him, Deojeet Guha also assaulted him. Likewise, the mother of Ranjit Guha was also assaulted when she tried to rescue the life of her son. 64. He has been cross-examined thoroughly wherein as under paragraph 13 of his statement he supported his version of calling of Ranjit Guha, the deceased, to the residence of Deojeet Guha. At paragraph 14 he deposed that the mother and father of Ranjit Guha had not been called but all the three had gone. In paragraph 15 it had been deposed by him that the assault was inside the house. In para 16 it had been deposed that the assault was in the orchard. In para 18 he deposed that at that time he was standing near a tree. In para 21 he deposed that he had stated before the police that the mother and father of Deojeet Guha had asked Deojeet Guha to kill Ranjit Guha. He also corroborated of assaulting the deceased which he had seen from the distance of about 40 feet. At paragraph 26 it has been deposed that two assaults were given by Deojeet Guha over the head of the deceased Ranjit Guha. It is evident from the testimonies of this witness PW-1 that during course of discussion between both the families, a dispute arose and quarrel took place where the alleged occurrence of mar-pit happened. PW-2 Prasanjit Guha 65. PW-2 Prasanjit Guha is the elder brother of the deceased and he is hearsay witness and came to know that Ranjit Guha was brutally assaulted by Deojeet Guha, Biswajit Guha, their father Manoranjan Guha and mother Bani Guha. Thereafter, he came to the hospital and saw his brother lying in the hospital suffering from serious injuries. In the cross-examination at paragreaph 10 he deposed that there was ancestral property. He also deposed that at the time of occurrence the relationship in between both the families were not congenial. His version also suggests that there had been dispute between both the families and a negotiation was going on when an altercation took place and incident occurred. PW-3 Nupur Guha 66. He also deposed that at the time of occurrence the relationship in between both the families were not congenial. His version also suggests that there had been dispute between both the families and a negotiation was going on when an altercation took place and incident occurred. PW-3 Nupur Guha 66. PW-3 Nupur Guha is the mother of the deceased who supported the prosecution version by deposing that at about 5:00 pm in the evening, while she was in the house situated at Deoli and her husband and younger son, namely, Ranjit Guha, the deceased, were in the house, at that time, Deojeet Guha and Manoranjan Guha, both appellants, came to her house and called Ranjit Guha. Ranjit Guha had gone to the house of Deojeet Guha and Manoranjan Guha. 67. She deposed that she along with her husband had also gone and following them Sona Ram Hansda PW-1 and Dilip Mardy had also gone to the house of Deojeet Guha. She deposed that there was a discussion on the issue of Dugri and in that course when the talk was going on Bani Guha and Manoranjan Guha both have caught hold of Ranjit Guha and asked Deojeet Guha to kill Ranjit Guha. Upon which Deojeet Guha had assaulted from a wood used for closing the door, upon which there was profuse bleeding from the head. The deceased fell down and again the second assault was given by Deojeet Guha due to which Ranjit Guha became senseless. 68. She further deposed that when she had tried to protect Ranjit Guha, she was also assaulted. Her husband was also assaulted. She and her husband both sustained injuries. PW3 thereafter fell down. Biswajit Guha had snatched away the mobile phone, golden ring and gold chain. 69. She further deposed at paragraph 6 that thereafter she, her husband, Dilip Mardy have carried the injured Ranjit Guha to their house and in course thereof, there was profuse bleeding. The deceased was carried to the T.M.H. hospital where he succumbed to injury. 70. It has also come that she was also treated at T.M.H. hospital. It has also come at paragraph 43 that it is incorrect to say that she, her husband and her son had gone to the house of the appellant along with a sword (Talwar). The deceased was carried to the T.M.H. hospital where he succumbed to injury. 70. It has also come that she was also treated at T.M.H. hospital. It has also come at paragraph 43 that it is incorrect to say that she, her husband and her son had gone to the house of the appellant along with a sword (Talwar). From the categorical version of this eye witness it is well founded that there was a property dispute between both the parties (informant people and appellants) and a negotiation for compromise was going on when a dispute arose and in a fit of anger the appellant Deojeet Guha had assaulted the deceased by which the deceased had sustained injuries and later on, the deceased succumbed to the injuries. PW-4 Shyamal Guha 71. PW-4 Shyamal Guha, the father of the deceased, corroborated the prosecution version and reiterated the same version which was deposed by PW-3. 72. He deposed at paragraph 9 that he had also sustained injury in his left hand for which she had taken treatment by getting x-ray etc. It has been stated at paragraph-24 that he had disclosed before the police that for last 3 – 4 days they were in the Bada Deoli house. He has further deposed that on 24.04.2009 Ranjit Guha was called over telephone from Parsudih for the purpose of compromise and they had gone to the house of the appellants. Thus, the depositions of PW-4 also corroborated the fact that during course of discussions for compromise, a dispute arose and thereafter in a sudden fight injuries were sustained by the deceased. PW-5 Arvind Biswas 73. PW-5 Arvind Biswas is hearsay witness. PW-6 Dr. Vibhakar Kumar 74. PW-6 Dr. Vibhakar Kumar is the Doctor who conducted the postmortem on the dead body of Ranjit Guha and found the following injuries :- Abrasions – (1) 2 cm x ¼ cm; 2 cm x ¼ cm; 1½ cm x ¼ cm over left side of amyloid just back to left ear. (2) 4 cm x ¼ cm over right forearm lateral side (3) 1 cm x ¼ cm in left thumb (4) 1 cm x ¼ cm over left side of forehead. Lacerated wound (1) 4 cm x 2 cm x bone deep over frontal area of scalp situated longitudinally (2) 2 cm x 1 cm x bone deep over left parietal area of scalp. 75. Lacerated wound (1) 4 cm x 2 cm x bone deep over frontal area of scalp situated longitudinally (2) 2 cm x 1 cm x bone deep over left parietal area of scalp. 75. Opinion was given that all the injuries are anti-mortem in nature caused by hard and blunt substance. PW-7 Dr. Atul Chhabra 76. PW-7 Dr. Atul Chhabra, is the Doctor who had examined Nupur Guha, PW-3 and found the injuries. PW-8 Mahesh Prasad 77. PW-8 Mahesh Prasad is the Investigating Officer. He has stated that the inquest report was prepared by him. It was marked as Ext.6. He found the mark of blood near the door of the house of the appellants. He deposed at paragraph-11 that in course of investigation he had seen a cut mark at the door frame. The witnesses had disclosed that the same was from the point of the sword. At paragraph 12 it has been deposed by the Investigating Officer that witnesses disclosed that the deceased was having with the sword in his hand and the cut mark in the doorframe was due to said sword. This version of PW-8 categorically supports the plea of defence taken by appellants that the said occurrence took place in a sudden quarrel which took place between both the parties during the course of negotiation of compromise going on between them and there was no premeditation and the incident took place in an agitated state of mind and as such, it is not a case of murder, rather, it comes within the purview of Exception 4 to murder, i.e., culpable homicide not amounting to murder. At paragraph-16 he deposed of taking statement of Sona Ram Hansda PW-1 who has not stated to have said to him in course of investigation that the father of Deojeet Guha had asked to kill Ranjit Guha, the deceased. It has further been stated at paragraph 18 that at the time of recording statement of Sona ram Hansda PW-1 the informant was along with him. At paragraph 20 it has been deposed by him that PW-1 has not disclosed in his statement that while going to the house of the appellants, Sona Ram Hansda had also followed. DW-1 Dr. Rajkumar Prasad 78. DW-1 Dr. Rajkumar Prasad is the Doctor who had treated Deojeet Guha, appellant of Cr. Appeal (DB) No.685 of 2011, in the jail as outdoor patient. DW-1 Dr. Rajkumar Prasad 78. DW-1 Dr. Rajkumar Prasad is the Doctor who had treated Deojeet Guha, appellant of Cr. Appeal (DB) No.685 of 2011, in the jail as outdoor patient. He had prescribed certain medicines and prepared injury report which has been marked as Ext.B, referring therein the following injuries :- (i) Sharp cutting on occipital bone (back of the head) ½” x ¼” and stitches given. (ii) Swelling on the left hand below the elbow joint. All the injuries are simple may be caused by hard and blunt substance. Injury No.(i) may be caused by Talwar (sword). 79. He further deposed that thereafter Deojeet Guha was referred to the Medical Board and the said document has been marked as Ext.C. DW-2 Dr. N.C. Sahu 80. DW-2 Dr. N.C. Sahu is the Doctor who had treated Deojeet Guha since he was having head injury. Injury was on occipital region. The injury report was prepared and marked as Ext. D. 81. This Court, on the basis of the discussion made hereinabove of the prosecution witnesses, has found that the learned trial court has considered the testimony of PW-1, PW2 and PW-3 wherein the prosecution version has been supported by them. 82. The Investigating Officer, although, has deposed that PW-1 has not deposed to have said that the father of Deojeet Guha had asked to kill Ranjit Guha. The Investigating Officer has deposed based upon the statements of the persons present at the place of occurrence that Ranjit Guha was also having with the sword in his hand. 83. However, names of the such persons have not been disclosed by the Investigating Officer. 84. Therefore, in order to come to a rightful conclusion about the said statement, we have considered it fit to go through the statement of the I.O. PW-8 who recorded the statements of witnesses examined during course of investigation under Section 161 Cr.P.C. in order to appreciate the fact that who are the persons who have deposed before the police that Ranjit Guha was having with the sword in his hand to ascertain the truthfulness of the defence version that there was assault and counter assault between both the parties where the appellant Deojeet Guha had also sustained the injuries as evident from the restimonies of DW-1 and DW2 who had medically examined the appellant Deojeet Guha in jail. 85. 85. At paragraph 39 of the case diary Parwati Biswas, neighbour of both the parties stated that she had seen Ranjit Guha going towards the house of the appellants having sword in his hand. 86. The law is well settled that the appellate court can go through the statement recorded under Section 161 Cr.P.C. in case if there is any confusion or vagueness in the statement made by the witnesses and particularly in the present case when I.O. in his deposition categorically stated in unequivocal terms that during course of investigation, some of the witnesses had stated that the deceased holding Talwar (sword) in his hand was going to the house of the appellant. 87. Further the statements as have been recorded under section 161 Cr.P.C. during course of investigation can be used to contradict or corroborate the testimonies of the witnesses in the Dock. 88. The convicts, while recording their statements under Section 313 Cr.P.C., have also stated that Ranjit Guha had come with the sword in his hand. 89. Further fact is evident from the material available on record that there was a dispute over a joint property for purpose of carrying out the mining work. The issue of enmity is not in dispute since it has also been deposed by the prosecution witnesses, i.e., PW-1 Sona Ram Hansda and PW2 Prasanjit Guha. 90. It is also an admitted fact that the Investigating Officer found the place of occurrence of assault in the house of the appellant and has found the mark of sword over the doorframe. 91. Further, Deojeet Guha had also sustained injuries which had been treated by jail Doctor, as would appear from Ext. C, injury report, which has been identified by DW-1 Rajkumar Prasad. 92. The fact about the injuries sustained by the appellant namely, Deojeet Guha is evident from Ext. C and D and by the testimony of the jail Doctor wherein this witness has specifically stated that injuries no (i) may be caused by Sword. 93. The fact about the sword in the hand of Ranjit Guha, the deceased, has also been deposed by the Investigating Officer based upon the statements of the persons present at the place of occurrence and recorded by the I.O. PW-8 during course of investigation of the case. 94. 93. The fact about the sword in the hand of Ranjit Guha, the deceased, has also been deposed by the Investigating Officer based upon the statements of the persons present at the place of occurrence and recorded by the I.O. PW-8 during course of investigation of the case. 94. In the light of the aforesaid fact, now it is to be apprreciated as to whether the case is coming under Exception 4 to Section 300 of the Indian Penal Code. In order to invoke this exception, four ingredients must be satisfied, i.e., - (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. 95. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [ (2003) 9 SCC 322 , it has been observed by the Hon’ble Apex Court as under :- "The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. 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 the 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. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.” 96. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.” 96. This Court, on the basis of the factual aspect as discussed hereinabove as also after taking into consideration the law laid down by Hon'ble Apex Court in the case of Surinder Kumar v. Union Territory, Chandigarh (Supra), Nankaunoo v. State of Uttar Pradesh (Supra), Murlidhar Shivram Patekar and Another v. State of Maharashtra (Supra) and Surain Singh v. State of Punjab (Supra) and other aforesaid judicial pronouncement wherein the difference has been carved out in between the culpable homicide amounting to murder and culpable homicide not amounting to murder. Rebutting back to the facts of the given case, this Court is proceeding to examine the fact of the given case. 97. In the instant case from perusal of the testimonies of the witnesses it is noticed that the witnesses examined by the prosecution have admitted that the dispute was going on between the parties with respect to Dugri property for mining stone. 98. It is explicit from the testimony of the witnesses that the occurrence took place on account of the dispute with respect to the claim of ownership over the disputed Dugri for breaking stone. P.W.-1, 2 and 3 have categorically substantiated this fact. 99. It is evident from the depositions of the witnesses that the talk of settlement was going on between the parties. 100. Thus, from the testimony of P.W.-1,2 and 3 it is evident that the cause of the occurrence was breaking stone in the Dugri. 101. In such scenario it cannot be ruled out that there was free fight between the parties. 102. This is also corroborated from the fact that the accused namely Deojeet Guha, members of the accused/appellant parties had sustained injuries as per the evidence of D.W.1 the doctor who had found multiple injuries on the person and had opined that the injuries might have been caused by sword. 103. 102. This is also corroborated from the fact that the accused namely Deojeet Guha, members of the accused/appellant parties had sustained injuries as per the evidence of D.W.1 the doctor who had found multiple injuries on the person and had opined that the injuries might have been caused by sword. 103. This facts has also been fortified by the testimony of P.W.8 the investigating officer who categorically stated that deceased had gone to the appellant house for the settlement talk having sword in his hand and also the cut mark on the door of the appellant house has been found by this witness. 104. No doubt the injuries sustained by prosecution witnesses were more and there was loss of life of Ranjit Guha on the side of the informant. In this context, it is pertinent to refer to the decision rendered in the case of State of U.P. Vs. Munni Ram & Ors., reported in 2011 (1 )East Cr.C.86 (SC) wherein the Hon’ble Supreme Court in para-17, has observed that the defence version cannot be discarded only on the basis of lesser number of injuries having been suffered by them. 105. In the obtaining evidence, it cannot be possible to say with certainty that the accused/ appellants party were the aggressors. It is evident that origin and genesis of the occurrence appears to have been withheld by both the parties. 106. The court below has failed to appreciate the factum of the manner in which the incident took place. 107. As discussed, members of both the parties sustained injuries and this is indicative of the fact that a sudden and free fight took place between the parties. 108. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence. 109. Thus considering the entire gamut of the case and on meticulous examination of the material evidence on record we have no hesitation in holding that there was free fight between both the parties on account of the dispute relating to breaking stone in the Dugri and in the said fight Ranjit Guha died and other witnesses sustained injuries including the appellant Deojeet Guha. 110. 110. As noticed no reliable evidence has been brought forth on the record as to what exactly transpired at the time of incident and who were the aggressors or who dealt the first blow. 111. In the fardbeyan it is alleged that the accused persons namely, Manoranjan Guha (since dead) and his wife Bani Rani Guha caught hold the deceased Ranjit Guha and accused/appellant namely Deojeet Guha assaulted him on his head by picking up the wood (wooden plank) lying there and accused Biswajit Guha gave the lathi blow on the P.W.4 as a result of which P.W.4 sustained injuries. Consequently on the basis of the ocular and medical evidence the inference and presumption can be drawn that accused person did not have the intention to commit murder. 112. From the discussion made here in above, it is apparent that in case of a free fight an offender can be made liable for his own act and not vicariously liable for the acts of others. In the case at hand there is no material to indicate that appellants/accused shared the common intention of committing death of deceased. 113. Before delving into the evidence on record on point of common intention and addressing the rival contentions in this regard as made by the parties, we wish to reiterate the precise nature, purpose and scope of Section 34 Indian Penal Code. 114. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. 115. In every case, it is not possible to have direct evidence of a common intention. The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. Reference in this regard may be taken from judgment as rendered by the Hon’ble Apex Court in the case of Bengai Mandal v. State of Bihar, reported in (2010) 2 SCC 91 wherein at paragraph 13 it has been held as under:- “13. Reference in this regard may be taken from judgment as rendered by the Hon’ble Apex Court in the case of Bengai Mandal v. State of Bihar, reported in (2010) 2 SCC 91 wherein at paragraph 13 it has been held as under:- “13. Thus, the position with regard to Section 34 IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is therefore very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the act(s) or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance.” 116. Further the Hon’ble Apex Court in the case of Girija Shankar v. State of U.P. (2004) 3 SCC 793 ], while bringing out the purpose and nature of Section 34 IPC observed in para 9, as follows:- “9. Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab [ (1977) 1 SCC 746 ] the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.” 117. Thus it is evident that the inference regarding applicability of Section 34 of the IPC to be drawn from the manner of the origin of the occurrence, the manner in which the accused arrived at the scene and the concert with which attack was made and from the injuries caused by one or some of them. The criminal act actually committed would certainly be one of the important factors to be taken into consideration but should not be taken to be the sole factor. 118. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention. 119. In Jarnail Singh vs. State of Punjab; AIR 1982 SC 70 , the Apex Court held that since there was no pre-concert between the accused persons nor a meeting of minds between them before the offence took place, the conviction of the accused under Section 302/34 IPC was bad and since the accused merely gave a token blow on the ear and caused simple injuries, the conviction was altered to one under Section 324 Indian Penal Code. 120. 120. In the backdrop the aforesaid discussion and the judicial pronouncement and the evidence of prosecution witnesses and also taken into consideration the facts and circumstances of the instant case we are of the view that the attack was not a premeditated one nor was there a prior concert. Initially settlement talks were on and fight started which is evident from the deposition of PW.8 wherein it is categorically stated that as per the evidence of the people who were present at the place of occurrence, the deceased was having with sword in his hand. Further from the evidence of DW.1 it is apparently clear that appellant Deojeet Guha had also sustained injuries which may cause by the sword. 121. The totality of the circumstances must be taken into consideration in order to arrive at a truthful conclusion that the appellants had a common intention to commit the offence under which they were convicted. The appellants were not armed with any deadly weapon like Fire Arms or sword etc and admittedly as per the testimonies of the prosecution witnesses accused/appellant Deojeet Guha were said to have picked wood standing nearby and assaulted the deceased Ranjit Guha. In the present case, the way the occurrence took place as depicted by the prosecution, there could not have been common intention between the accused/appellants. 122. Thus, in these circumstances it cannot be said that the appellants have acted in furtherance of common intention to attract even constructive liability under Section 34 Indian Penal Code. 123. The facts and circumstances, in our view, do not give rise to an inference of preconcert. We have not found any material from the side of the prosecution to show that the present appellants had any common intention to eliminate the deceased. 124. In the absence of common intention, we are of the view that convicting the appellant with the aid of Section 34 IPC cannot be sustained. 125. It is also settled proposition of law that for conviction of an offence read with Section 34 IPC, it is necessary that there should be a finding as to the common intention of the participants. 125. It is also settled proposition of law that for conviction of an offence read with Section 34 IPC, it is necessary that there should be a finding as to the common intention of the participants. Although the learned trial court has convicted the appellants under Section 302 read with Section 34 IPC, the trial court has not recorded any finding as to how the appellants shared the common intention to establish their constructive liability to sustain the conviction under Section 302 read with Section 34 Indian Penal Code. 126. This court is of view that in the instant case there were random individual acts done without meeting of minds and, the appellants can be held liable only for their individual acts. No such pre-arranged plan has been proved. 127. It has also not been proved that any criminal act has been done in concert pursuant to the pre-arranged plan. 128. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by Section 34 of the Penal Code, 1860 because there was no prior meeting of minds to form a pre-arranged plan. 129. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others. Considering the totality of the circumstances, conviction of the appellants under Section 302 read with Section 34 IPC cannot be sustained. 130. The learned trial court however, has come to the finding by considering the case to be a case of commission of murder and hence has convicted the appellants under Section 302 of the Indian Penal Code but, while doing so, learned trial court has not appreciated the fact about the applicability of the exception as under Exception 4 of Section 300 of I.P.C. by ignoring the fact that the one of the appellants namely Deojeet Guha had also sustained injuries and as per the DW.1 the injuries may cause due to the sword and further the investigating officer has also categorically stated that the deceased was having with the sword when scuffle took place. It is pertinent to mention here that aforesaid statement of the I.O. found fully substantiated by the evidence of D.W.1. 131. It is pertinent to mention here that aforesaid statement of the I.O. found fully substantiated by the evidence of D.W.1. 131. It is equally settled proposition of law that defence witnesses should have also deserved the equal weightage and treatment. Reference in this regard may be taken from the judgment of Hon’ble Apex Court rendered in the case of Dudh Nath Pandey v. State of U.P., (1981) 2 SCC 166 , wherein it was observed as under:- "19. ...Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses. ..." 132. Similar view has been taken by the Hon’ble Apex Court in the case of State of Haryana v. Ram Singh, (2002) 2 SCC 426 : 19.----- Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one — the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself — what more is expected of the defence case: a doubt or a certainty — jurisprudentially a doubt would be enough: when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet — it is the prosecutor’s duty to prove beyond all reasonable doubts and not the defence to prove its innocence — this itself is a circumstance, which cannot but be termed to be suspicious in nature. 133. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet — it is the prosecutor’s duty to prove beyond all reasonable doubts and not the defence to prove its innocence — this itself is a circumstance, which cannot but be termed to be suspicious in nature. 133. This Court is of the view, based upon the judicial pronouncements as referred hereinabove, that the same on the basis of the discussion made hereinabove, appears to be a sudden free fight with no premeditation and the act was done in a heat of passion and it has also not come that the assailant has acted in a cruel manner. 134. It further appears that for the purpose of attracting the requirement to invoke Exception 4 to Section 300 I.P.C., the number of wounds caused during the occurrence is not decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in the heat of passion. 135. This Court, therefore, is of the view that the learned trial court while convicting the appellants for commission of offence under Section 302 of the Indian Penal Code, has committed serious irregularities by ignoring all these facts as recorded in the preceding paragraphs. 136. Accordingly, we are of the view that the judgment impugned convicting the appellants under Section 302 and 302/34 of I.P.C. needs to be interfered with by modifying it to that of conviction of the appellants under Section 304 Part-II and other Sections of the Indian Penal Code. 137. Thus, on evaluation of the testimony of the witnesses and the evidence we hold the appellant Debjit Guha @ Deojeet Guha (appellant in Criminal Appeal (D.B.) 685 of 2011) guilty for the offence under Section 304 Part II and 323 of the I.P.C. 138. P.W.4 who is the father of the deceased has deposed that Biswajit Guha (appellant in Criminal Appeal(D.B.) No.634 of 2011) and Deojeet Guha had assaulted him by danda. Therefore, in such circumstances we hold the appellant Biswajit Guha (appellant in Criminal Appeal(D.B.) No.634 of 2011) guilty for the offence under section 323 of IPC. 139. P.W.4 who is the father of the deceased has deposed that Biswajit Guha (appellant in Criminal Appeal(D.B.) No.634 of 2011) and Deojeet Guha had assaulted him by danda. Therefore, in such circumstances we hold the appellant Biswajit Guha (appellant in Criminal Appeal(D.B.) No.634 of 2011) guilty for the offence under section 323 of IPC. 139. From the evidence of witnesses, it is apparent that there is General and omnibus allegation against accused appellant Bani Guha (appellant in Criminal Appeal (D.B.) No.667 of 2011) that she caught hold of the deceased. It is pertinent to mention here that at the time of alleged occurrence she was about 70 years old and in such old age it is impractical to think that she is strong enough to catch hold of the deceased who was very much young. However, other than this allegation nothing has come against this appellant. Since this court in preceding paragraphs of the judgment has categorically held that in the instant case there is no preconcert of mind and section 34 of the IPC has also no application, as such, each and every accused is liable for his own act. Thus in the backdrop of aforesaid discussion this court is of view that accused/appellant Bani Guha cannot be held liable for any offence under Indian Penal Code and therefore she is acquitted from all the charges levelled against her and discharged from her criminal liability. 140. Consequently, the judgment passed by the learned trial court is modified and appellant Debjit Guha @ Deojeet Guha (appellant in Criminal Appeal (D.B.) 685 of 2011) is held guilty for the offence under Section 304 Part II I.P.C. and sentence him to undergo rigorous imprisonment for nine years and fine of Rs.5,000/- and in default thereof, to further undergo rigorous imprisonment of six months. 141. The conviction of namely, Debjit Guha for the offence under Section 379 I.P.C requires no interference. Therefore, his conviction under Section 379 of I.P.C. is upheld. However, no separate sentence was awarded to the appellant Debjit Guha of Criminal Appeal (D.B.) 685 of 2011 for the offence punishable under Section 379 of I.P.C., hence no interference is required. 142. 141. The conviction of namely, Debjit Guha for the offence under Section 379 I.P.C requires no interference. Therefore, his conviction under Section 379 of I.P.C. is upheld. However, no separate sentence was awarded to the appellant Debjit Guha of Criminal Appeal (D.B.) 685 of 2011 for the offence punishable under Section 379 of I.P.C., hence no interference is required. 142. It transpires from the record that appellant Debjit Guha @ Deojeet Guha (appellant in Criminal Appeal (D.B.) 685 of 2011) has remained in jail for more than nine years and, as such, the appellant Debjit Guha @ Deojeet Guha (appellant in Criminal Appeal (D.B.) 685 of 2011) is sentenced for the period already undergone by him and directed to be released forthwith from the jail custody if not wanted in any other case. No separate sentence was awarded to the appellant Debjit Guha for the offence punishable under Section 323 of I.P.C. and, therefore, no interference is required. 143. The Appellant namely Biswajit Guha (appellant in Criminal Appeal(D.B.) No.634 of 2011) is acquitted for the offence punishable under Section 302/34 of I.P.C. but the conviction of the said appellant Biswajit Guha (appellant in Criminal Appeal(D.B.) No.634 of 2011) under Section 323 I.P.C is upheld only and since the appellant Biswajit Guha of Criminal Appeal(D.B.) No.634 of 2011 is not awarded separate sentence for the offence punishable under Section 323 of I.P.C. by learned trial court, no interference is required by this court. Since he is on bail, he is discharged from liabilities of bail bonds. 144. Since the appellant No.2 Manoranjan Guha of Criminal Appeal (D.B.) No.667 of 2011 is no more alive and the appeal filed by him has abated, no finding on his conviction and sentence by this Court is required. 145. In view of the discussions made, hereinabove, Judgment of conviction dated 1st December, 2011 and order of sentence dated 2nd December, 2011 passed by the learned Sessions Judge-II, Jamshedpur, in Sessions Trial No.341 of 2009 convicting the appellants for the offence under Sections 302 and 302/ 34 of the I.P.C. are, hereby, set aside. 146. The Criminal Appeal No. 634 of 2011 and Criminal Appeal No. 685 of 2011 are hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above. 147. 146. The Criminal Appeal No. 634 of 2011 and Criminal Appeal No. 685 of 2011 are hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above. 147. The Criminal Appeal No.667 of 2011 is hereby allowed and appellant No.1 Smt. Bani Guha @ Bani Rani Guha is absolved from her all the criminal liability and, she is on bail, as such, she is discharged from the liabilities of bail bonds. 148. We find from the record that Mahamaya Guha, is the victim of the crime, being the wife of the deceased, who has lost her husband. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. 149. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the concerned DLSA, so that adequate compensation is paid to this victim at an early date as per the rules and regulations in this regard. 150. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 151. All the three criminal appeals are hereby disposed of as above. 152. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. I agree.