JUDGMENT : Sujit Narayan Prasad, J. The instant appeal is against Judgment of conviction dated 11.02.1994 and Order of sentence dated 17.02.1994 passed by the Additional District and Sessions Judge-II, Godda in Sessions Case No.121 of 1990/12 of 1994, whereby and whereunder, the surviving appellant, i.e., appellant no.1, namely, Sudhir Rawani has been convicted under Sections 302 and 323 of the Indian Penal code and sentenced him to undergo imprisonment for life under Section 302 of the Indian Penal code for committing murder of Gopal Rawani and further to undergo rigorous imprisonment for one year for the commission of offence under Section 323 of the Indian Penal Code with direction to run both the sentences concurrently. The appellant no.2, namely, Darwari Rawani, (now deceased) has been convicted under Section 323 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 9 months and fine of Rs.1000/-for the commission of offence under Section 323 of the Indian Penal Code for voluntarily causing hurt to Vijay Rawani. 2. The prosecution story in brief as per the fardbeyan given by Kamala Devi-P.W.4, widow of the deceased (Gopal Rawani) to S.I. Sheo Nandan Sharma (P.W.7), Officer-in-charge of P.S. Lalmatia on 13.04.1990 at about 2:00 a.m. in Village-Mahua Bathan is that on 12.04.1990 in the morning, informant Kamala Devi and her husband’s elder brother’s wife, Suro Devi (P.W.3) had gone together to gather Mahua but by that time, Mahua had already been gathered by the wife and mother of accused person, namely, Sudhir Rawani. Therefore, the informant and her companion silently returned back home and narrated the said incident to their respective husbands. After discussing the matter in between the family members at about 2:00 p.m. on 12.04.1990, Gopal Rawani, (the deceased & husband of informant) was going to Pradhan Metua Murmu for registering his complaint, as dispute regarding Mahua tree was still unresolved. But in midway, when he come across accused Sudhir Rawani and Darbari Rawani, exchange of hot words between them were started. In the meantime, accused Sudhir Rawani was running to his house and came out with Bhala. He struck spear (Bhala) with great force on the chest of Gopal Rawani. The spear crossed the whole body of the deceased Gopal Rawani which resulted into his death. Upon this, Vijay Rawani (P.W.1), elder brother of the deceased, went there. In the meantime, accused Sudhir Rawani was running to his house and came out with Bhala. He struck spear (Bhala) with great force on the chest of Gopal Rawani. The spear crossed the whole body of the deceased Gopal Rawani which resulted into his death. Upon this, Vijay Rawani (P.W.1), elder brother of the deceased, went there. Then accused Darbari Rawani starting giving lathi blow to Vijay Rawani. In the meantime, accused Sudhir Rawani while leaving Bhala, had lifted lathi and gave lathi blow to Vijay Rawani. Informant Kamala Devi started hue and cry, thereupon witness Sat Lal Murmu (P.W.2), Hopan Mai Murmu (P.W.5), Lilamani etc., who were sitting at nearby area had witnessed the occurrence. On the basis of the aforesaid fardbeyan, Boarijore (Lalmatia) P.S. Case No.50/90 was registered. Formal F.I.R. (Ext.5) was drawn up. After investigation, the charge-sheet was submitted against the accused persons and after cognizance having been taken by the C.J.M., Godda on 13.07.1990, the case was finally committed to the Court of Sessions wherefrom the case was transferred for disposal and accordingly, the concerned Court has started trial and has framed charge against the accused persons and accused persons pleaded not guilty and thereafter, the trial commenced. The prosecution has examined altogether eight witnesses and after considering the testimony of P.W.4-Kamla Devi and P.W.5-Hopan Mai Murmu to be eye witnesses and by relying upon the same, having found to be in corroboration to the prosecution version being corroborated by the Doctor so far as the injury sustained by the deceased and the Investigating Officer P.W.7 has found the charge proved against the surviving appellant i.e., appellant no.1 beyond all shadow of doubts and as such, the judgment of conviction/sentence has been passed. 3. Before proceeding with the matter, it requires to refer herein that the original appellant no.2, namely, Darwari Rawani since has died and as such, the appeal against him was abated, as would appear from the order dated 14.05.2019 passed by the coordinate Division Bench of this Court. 4. Mrs. Amrita Banerjee, learned counsel has been appointed as Amicus vide order dated 23.04.2019. She has argued the case on behalf of the appellant no.1, namely, Sudhir Rawani and has taken the following grounds in assailing the judgment of conviction/sentence:- (i) It is a case where the judgment of conviction has been passed wherein there is no eye witness. 4. Mrs. Amrita Banerjee, learned counsel has been appointed as Amicus vide order dated 23.04.2019. She has argued the case on behalf of the appellant no.1, namely, Sudhir Rawani and has taken the following grounds in assailing the judgment of conviction/sentence:- (i) It is a case where the judgment of conviction has been passed wherein there is no eye witness. Submission has been made, however, the learned trial Court has considered the P.W.4 and P.W.5 to be eye witnesses and basing upon their testimonies, the learned trial Court has come to conclusive finding about proving of charge beyond all shadow of doubts but according to learned Amicus while considering the P.W.4 and P.W.5 to be eye witnesses, no thoughtful consideration has been given by not taking into consideration the testimony of P.W.3 in specific terms has stated that P.W.4 was sitting along with her at the time of occurrence and as such, the question has been raised that when P.W.4 was sitting with her, then how it can be said to be eye witness, so far as P.W.4 is concerned. (ii) Learned Amicus, therefore, has taken the ground that the finding of the learned trial Court since is based upon the testimony of P.W.4 considering her to be eye witness is erroneous consideration so as also consideration of P.W.5 to be eye witness, as would appear from the testimony of P.W.5. The argument has been advanced that the injury report has not been exhibited and as such, serious prejudice has been caused to the appellant. Further, argument has been advanced that the place of occurrence has not been proved and as such, doubt is there about the prosecution version of commission of crime. In alternative, argument has been advanced that even accepting the prosecution version to be correct, then also the foremost requirement ought to have been considered by the learned trial Court about pre-meditation to commit murder. In alternative, argument has been advanced that even accepting the prosecution version to be correct, then also the foremost requirement ought to have been considered by the learned trial Court about pre-meditation to commit murder. According to the learned Amicus that from the appreciation of the testimony of prosecution witnesses in entirety, it would be evident that the occurrence took place at the spur of moment having no intention to kill the deceased and therefore, it is not a case where the ingredients of Section 302 will be applicable since the case will come under Part-1 or Part-II of Section 304, since, if the prosecution story will be taken in entirety then the same will come under exception 1 and 4 as enshrined under Section 300 of the Indian Penal Code. Learned Amicus, on the basis of the aforesaid ground, has submitted that the impugned judgment is not sustainable in the eyes of law, on these grounds, i.e., there is no eye witnesses or place of occurrence has not been proved or even injury report has not been exhibited. In alternative, the argument has been made to convert the conviction from Section 302 to Part-I or Part-II of Section 304 of Indian Penal Code. 5. Per contra, Mr. Tarun Kumar, learned APP appearing for the State has submitted in response to the submission made on behalf of the appellant about having no eye witnesses by raising the argument that P.W.4 Kamla Devi and P.W.5 Hopan Mai Murmu are the eye witnesses of the said occurrence. It would be evident from the bare reading of the testimony as recorded under para-1 and para-11 of P.W.4 and para-1 and para-11 of P.W.5, wherein, in specific words, it has been stated by them that they had seen the commission of crime while the appellant was assaulting the deceased by Bhala which ultimately resulted into his death since the injury was sustained on the vital part of the body of the deceased. It has been submitted that version of P.W.4 and P.W.5 has been corroborated by P.W.6, the Doctor, wherein, it has been deposed by him that injury sustained by the deceased was the reason of his death by giving an opinion that injury sustained by the deceased on the chest was by sharp pointed weapon i.e., Bhala and as such, version of assault having been given by P.W.4 and P.W.5 has been corroborated by the Doctor, P.W.6. It has further been submitted by referring to testimony of P.W.7, the investigation officer that he had visited the place of occurrence and seized the incriminating materials like blood stained earth, lathi and bhala and has prepared the inquest report (Ext.2) and as such, the said testimony is sufficient to corroborate the testimony of P.W.4 and P.W.5 and as such, they are eye witnesses and since the learned trial Court has considered P.W.4 and P.W.5 to be eye witnesses by taking into considering their testimony, which cannot be said to suffer from an error. 6. The contention of the learned counsel for the appellant is that the place of occurrence having not been proved or the injury report has not been exhibited. In the context of aforesaid contention, submission has been made by the learned APP that even accepting the aforesaid ground to be correct but herein, the case has been found to be proved by the testimony of eye witnesses, i.e., P.W.4 and P.W.5 and as such, not exhibiting the injury report or place of occurrence even if not proved, then the testimony of eye witnesses will not be allowed to go-by. Submission has been made, so far as the alternative argument advanced on behalf of the appellant that the case if taken to be correct as per the prosecution version, the same either will come under the exception 1 and 4 of Section 300 and as such, it is a fit case where the conviction is required to be converted from Section 302 to that of 304 Part I or Part-II. 7. 7. Learned APP has submitted that exception either as contained under exception 1 and 4 of Section 300 will not be applicable if the testimony of witnesses will be taken in entirety, since, as per the prosecution version having been corroborated by P.W.4 and P.W.5 that appellant immediately after scuffle rushed to his house and came out with Bhala and assaulted the deceased on the vital part of the body causing his death subsequently. He, therefore, submits that the question of bringing the fact under Part-I and Part-II of Section 304 will not arise, since appellant in order to cause bodily injury had gone to his house and came with Bhala that itself suggestive of the fact that he only in order to commit murder has come out with Bhala and assaulted the deceased on the vital part and as such, it was the intention of the appellant to kill the deceased. 8. He has relied upon the judgment rendered by the Hon’ble Apex Court in the case of Prasad Pradhan & Anr. Vrs. The State of Chhattisgarh, reported in (2023) SCC Online SC 81, wherein, also the Hon’ble Apex Court while considering the ingredients of exception to be made applicable as contained under Section 300, has been pleased to make an observation that act of accused will only fall under exception to Section 300 of the IPC of causing the act of injury where it will in all probability cause death and any person of average intelligence would have the knowledge that assault which is dangerous for life, then the same will not come under the exception to Section 300, rather it will come under Section 302 of the Indian Penal Code. 9. Learned APP, on the basis of the aforesaid submission, has submitted that the judgment impugned requires no interference. 10. We have heard the learned counsel for the parties, perused the documents available on record including the testimony of prosecution witnesses, exhibits like postmortem report, fardbeyan, FIR as also the finding recorded by the learned trial Court in the impugned judgment of conviction. 11. We have already referred herein the prosecution story and as such, now proceeding to examine the testimony of the prosecution witnesses. 11. We have already referred herein the prosecution story and as such, now proceeding to examine the testimony of the prosecution witnesses. The record suggests that altogether 8 witnesses have been examined out of them P.W.8 Wakil Singh is the formal witness who had identified the signature and writing of S.I., Shiv Nandan Sharma on Sanha and Sanha is marked as Ext.6. P.W.7 Shiv Nandan Sharma, the then Officer-in-charge of P.S. Lalmatia, Godda as well as the investigating officer of the case, has proved the inquest report (Ext.2), seizure list related to lathi attached to Bhala, blood smeared earth (Ext.3), fardbeyan (Ext.4), formal F.I.R. (Ext.5), and Postmortem Report (Ext.1). Kamla Devi has been examined as P.W.4 (widow of the deceased & informant) and has stated that for two days, accused Sudhir Rawani and Darbari Rawani had not allowed her to gather Mahua. At about two and half year before on Thursday at 2:00 p.m., her husband Gopal Rawani was going to make complaint to Pradhan about it. At that time, she was standing at her door and saw the exchanges of hot words between her husband on one side and accused Sudhir Rawani and Darbari Rawani on other. She has also stated that Sudhir went to his house and came out with Bhala. He gave Bhala blow to her husband on chest due to which he died on the spot. She raised alarm thereupon many people assembled there. Her husband’s elder brother Vijay Rawani (P.W.1) has also arrived there. Accused Sudhir Rawani and Darbari Rawani had also assaulted him mercilessly with lathi. In her cross-examination, she has stated that she also came out of house along with her husband and no sooner her husband went out from the door, accused Sudhir and Darbari surrounded him. Altercation between them took place. Sudhir took out Bhala and struck her husband and he fell down. Then she started raising alarm, thereupon many people assembled there. She has also stated that when her husband went out of the door, at that time Sanak Murmu, Hopan Mai, Lilamani, Sanjhala Murmu were present at nearby area. She has also stated that on the relevant day, she while accompanying with her Gotani, had gone to gather Mahua. The Mahua tree was located about half mile away from the house. She went there after one hour of the sunset about 7 hours. She has also stated that on the relevant day, she while accompanying with her Gotani, had gone to gather Mahua. The Mahua tree was located about half mile away from the house. She went there after one hour of the sunset about 7 hours. By that time Sudhir, his wife and Darbari had already gathered Mahua. She has also stated that from the Mahua tree, she came back home about 8 hours in the morning and told her husband that wives of Suhir and Darbari had gathered Mahua. She has denied the suggestion that no such occurrence as she has deposed, did take place and she did not see anything. St. Lal Murmu and Hopan Mai Murmu have been examined as P.W.2 and P.W.5 respectively and they are independent witnesses have supported and corroborated the witnesses as they have consistently stated that each of them saw the occurrence by their own eyes. Each of them saw that Suhir Rawani gave Bhala blow to Gopal Rawani. Then Gopal Rawani had fallen down and died. Thereafter, Vijay Rawani also came there to know the occurrence but both the accused persons assaulted him with lathi. P.W.2 has also stated that at the time of occurrence, he was in his Khalihan for crushing out Masoori whereas Hopan Mai Murmu has stated that at that time, she was sitting under shadow of tarmind tree at same distance in east to tarmind tree. Vijay Rawani has been examined as P.W.1 who has corroborated the witnesses and has stated that on hearing hue and cry, he came out of his house and went into Gali near Tarmind tree. He saw his younger brother Gopal Rawani lying near the tree at some distance east to the tree. Suro Devi has been examined as P.W.3 who has also corroborated the witnesses and has stated that on relevant day in the morning, there was quarrel between her and her Gotani on one side and wives of accused persons on the other in the matter of gathering Mahua. She has also stated that while returning from there, her Gotani appraised the matter to her husband Gopal, the deceased. Thereafter, Gopal (deceased) was going to make complaint to Pradhan through Gali, sound of hue and cry heard, thereupon she and her Gotani came to the door. Accused Sudhir Rawani struck Bhala on the chest of Gopal Rawani. He fell down and died. Thereafter, Gopal (deceased) was going to make complaint to Pradhan through Gali, sound of hue and cry heard, thereupon she and her Gotani came to the door. Accused Sudhir Rawani struck Bhala on the chest of Gopal Rawani. He fell down and died. Her husband went there but both the accused assaulted her husband with lathi. Dr. K.N. Choudhary has been examined as P.W.6 who had conducted the postmortem examination over the dead body of the deceased Gopal Rawani. He has stated that he had performed postmortem over the dead body of Gopal Rawani on 13.04.1990 at 2:30 p.m. and found rigor mortis present in all limbs, chest and legs smeared with blood at places and a penetrating wound crossing the right chest through and through at the level of 4th and 5th ribs with the fracture thereof. The surrounding areas of wound of entry and exit were smeared with clotted blood. On dissection all the four chambers of heart were found almost empty. The right lenticel was found emptied. Almost 50 ml. blood and fluid was found collected in the space in the vicinity of the heart. Brain and liver were normal. Lungs were pale but uninjured. The stomach contained semi digested food material. The bladder contained about 20 ML. of urine. The injuries found by the doctor were ante-mortem in nature and caused by sharp pointed weapon i.e., Bhala. The death was caused by shock and hemorrhage as a result of above mentioned injuries within 36 hours since examination. The Bhala was executed and handed over to Constable accompanying the dead body. 12. The question has been raised regarding the status of P.W.4 and P.W.5 who have been treated to be eye witnesses by the prosecution having been accepted by the learned trial Court. 13. According to the learned Amicus, P.W.4 Kamla Devi and P.W.5 Hopan Mai Murmu, cannot be construed to be witnesses if their testimony will be read together with testimony of P.W.3 Suro Devi. 14. This Court, therefore, is proceeding to examine the testimony of P.W.4 and P.W.5 along with testimony of P.W.3 in order to answer the argument advanced on behalf of the learned counsel for the appellant. 14. This Court, therefore, is proceeding to examine the testimony of P.W.4 and P.W.5 along with testimony of P.W.3 in order to answer the argument advanced on behalf of the learned counsel for the appellant. P.W.4 Kamla Devi (informant) has stated in her deposition that for two days, accused Sudhir Rawani and Darbari Rawani had not allowed her to gather Mahua and her husband Gopal Rawani was going to make complaint to Pradhan about it. At that time, she was standing at her door and saw the exchanges of hot words between her husband on one side and accused Sudhir Rawani and Darbari Rawani on other. She has also stated that Sudhir went to his house and came out with Bhala. He gave Bhala blow to her husband on chest due to which her husband died. She raised alarm thereupon many people assembled there. Her husband’s elder brother Vijay Rawani (P.W.1) has also arrived there. Accused Sudhir Rawani and Darbari Rawani had also assaulted him mercilessly with lathi. P.W.5 Hopan Mai Murmu has stated in his deposition that Suhir Rawani gave Bhala blow to Gopal Rawani near tarmind tree. Then Gopal Rawani had fallen down and died. Thereafter, Vijay Rawani also come there to know the occurrence but both the accused persons assaulted him with lathi. P.W.3 Suro Devi has stated in her deposition that on relevant day in the morning, there was quarrel between her and her Gotani on one side and wives of accused persons on the other in the matter of gathering Mahua. She has also stated that while returning from there, her Gotani appraised the matter to her husband Gopal, the deceased. Thereafter, Gopal (deceased) was going to make complaint to Pradhan through Gali, sound of hue and cry heard thereupon, she and her Gotani came to the door. Accused Sudhir Rawani hit Bhala on the chest of Gopal Rawani. He fell down and died. Her husband went there but both the accused assaulted her husband with lathi 15. After going through the testimony of P.W.4 and P.W.5 along with testimony of P.W.3, we have found that P.W.4 at para-1 and para11 of her testimony has stated that she had seen the occurrence of giving assault by the appellant by Bhala in the chest of the deceased. After going through the testimony of P.W.4 and P.W.5 along with testimony of P.W.3, we have found that P.W.4 at para-1 and para11 of her testimony has stated that she had seen the occurrence of giving assault by the appellant by Bhala in the chest of the deceased. P.W.5 has also given such statement of seeing the occurrence of assault given by the appellant by Bhala upon the deceased, as would appear from his deposition recorded at para-1 and para-11. 16. This Court has confronted the learned Amicus that on what basis the status of P.W.4 and P.W.5 as eye witnesses is being questioned. 17. The argument has been advanced by referring to the testimony of P.W.3. According to the learned Amicus, P.W.4 was sitting with P.W.3 Suro Devi, then how it can be said that P.W.4 Kamla Devi is an eye witness. 18. We have examined the testimony of P.W.3 Suro Devi in entirety and found therefrom that P.W.3 was sitting with P.W.4 at the time of occurrence. It has come in the testimony that occurrence took place near tarmind tree which was just adjacent to the house of P.W.4 Kamla Devi. P.W.4 was also adjacent to the house of the appellant. Therefore, even if P.W.4 was sitting with P.W.3, it cannot be doubted that occurrence took place just in front of the house, the same will not be witnessed by P.W.4, therefore, merely by making reference that P.W.4 was sitting with P.W.3, it cannot be construed that P.W.4 had not seen the occurrence, rather, P.W.4 in specific words has deposed in para-1 and para-11 that she had seen the occurrence of giving assault by the appellant in the chest of the deceased. Her version has been corroborated by the testimony of P.W.5 Hopan Mai Murmu. The testimony being given by P.W.4 and P.W.5 to the effect that deceased was assaulted by Bhala in the chest finds in corroboration with testimony of Doctor, P.W.6 who had found the nature of injury to be ante mortem and the injury sustained by the deceased in the chest, as would appear from the nature of injury found by the Doctor, P.W.6 in his testimony which reads as under:- “………..I had found one penetrating wound crossing the right chest through and through at the level of 4th and 5th ribs with the fracture thereof. The surrounding areas of wound of entry and exit were smeared with clotted blood. On dissection all the four chambers of heart were found almost empty. The right lenticel was found emptied. Almost 50 ml. blood and fluid was found collected in the space in the vicinity of the heart. Brain and liver were normal. Lungs were pale but uninjured. The stomach contained semi digested food material. The bladder contained about 20 ML. of urine………….” Further, even P.W.7 Shiv Nandan Sharma, the investigating officer has visited the place of occurrence and seized lathi attached to spear (Bhala) and blood smeared earth (Ext.3) etc., and prepared the inquest report (Ext.2). 19. This Court after considering the testimony of P.W.6, the Doctor and P.W.7, the investigating officer which corroborate the version as has been deposed by P.W.4 and P.W.5, therefore, we are not hesitant in holding the P.W.4 and P.W.5 to be eye witnesses. 20. The learned trial Court has considered P.W.4 and P.W.5 to be eye witnesses and reached to such conclusion after taking into consideration the testimony of P.W.6 and P.W.7 and further corroboration of testimony of other witnesses, i.e., P.W.1, P.W.2 and P.W.3 and as such, aforesaid conclusion having been arrived at by the learned trial Court, according to our considered view, cannot be said to suffer from an error. 21. Now the questions so far as the place of occurrence was not proved and injury report was not exhibited are concerned, even on that ground, the judgment of conviction cannot be reversed on the ground that case has been found to be proved beyond all shadow of doubts on the basis of the testimony of eye witnesses, i.e., P.W.4 and P.W.5 having been corroborated by testimony of P.W.6, the Doctor and P.W.7, the investigating officer. 22. The law is well settled that even if there is any discrepancy of injury report if not exhibited or place of occurrence if not proved, then the testimony of eye witnesses cannot be discarded, as has been held by the Hon’ble Apex Court in the case of Fainul Khan Vrs. State of Jharkhand & Anr., (2019) 9 SCC 549 wherein, at paragraph-11, it has been held as under:- “11. PW 8 and the deceased were going together when they were surrounded and assaulted by the accused persons. State of Jharkhand & Anr., (2019) 9 SCC 549 wherein, at paragraph-11, it has been held as under:- “11. PW 8 and the deceased were going together when they were surrounded and assaulted by the accused persons. We do not find any lacunae in the evidence or cross-examination of the witness to doubt his presence and the injuries suffered by him in the same occurrence. PW 7, a resident of the locality and an independent witness also suffered injuries during the same occurrence. However, we are not satisfied that PW 6 is an eyewitness. The witness was at home and reached the place of occurrence after hearing the commotion by which time the deceased was lying on the ground. PW 7 deposed that PW 6 reached after him. PW 7 deposed of assault by appellant Sainul upon PW 8 with lathi and also upon the witness himself by appellants Fainul and Mir Shaukat causing injuries on his head and right hand. Appellant Mir Shaukat is also stated to have assaulted the witness on his thigh with lathi. PW 8 deposed that the accused surrounded him and the deceased. Appellant Sainul assaulted the deceased on the head. The witness was assaulted on his face, head and hand with the lathi. Both the witnesses deposed that they were then taken to the hospital along with the deceased where their injuries were examined. PW 8 during the course of his deposition also showed the scars caused to him by his injuries, noticed by the trial Judge. The statement of the two witnesses is also stated to have been recorded at the hospital. The fact that there is no injury report, in our opinion, can at best be classified as a defective investigation but cannot raise doubts about the credibility of their being injured witnesses in the same occurrence. The fact that PW 8 may be related to the deceased or previous enmity existed, are irrelevant in the facts of the case. PW 11, the officer-in-charge of Kisko Police Station where the deceased and injured were taken, has specifically deposed that he submitted a request for the injury report of the witnesses and pursuant to which their injury reports were made available to him. Only thereafter was the charge-sheet submitted by him. PW 11, the officer-in-charge of Kisko Police Station where the deceased and injured were taken, has specifically deposed that he submitted a request for the injury report of the witnesses and pursuant to which their injury reports were made available to him. Only thereafter was the charge-sheet submitted by him. We do not find any material in his cross-examination to discredit his statements.” Likewise, the Hon’ble Apex Court in the judgment rendered in the case of State of U.P. Vrs. Babu and Ors., reported in (2003) 11 SCC 280 wherein at paragraph-5, it has been held as under:- “5. A bare perusal of the High Court's judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan the place where the gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location of the gaslight in the site plan was fatal. This Court in Shakti Patra v. State of W.B. [1981 Supp SCC 24 : 1981 SCC (Cri) 644 : AIR 1981 SC 1217 ] held that where a prosecution witness testified that he had identified the accused in the light of the torch held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi v. State of Gujarat [1983 SCC (Cri) 607 : AIR 1983 SC 599 ]. It would be proper to take note of what was stated by this Court in George v. State of Kerala [ (1998) 4 SCC 605 : 1998 SCC (Cri) 1232] regarding statements contained in an inquest report. It would be proper to take note of what was stated by this Court in George v. State of Kerala [ (1998) 4 SCC 605 : 1998 SCC (Cri) 1232] regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they relate to what the investigating officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of the Code of Criminal Procedure, 1973 (in short “CrPC”). The position is no different in case of a site plan.” 23. This Court, after having discussed the factual aspect vis-à-vis the legal position and when scrutinized the finding recorded by the learned trial Court is of the considered view that finding so recorded by coming to conclusion of proving the charge by the prosecution against the appellant beyond all shadow of doubts, cannot be said to suffer from an error. 24. This Court, is now proceeding to deal with the alternative argument that even accepting the crime has been committed but it will come either under exception 1 or exception 4 to Section 300 IPC and as such, at best the case will be under Section 304 Part-I or Part-II. 25. This Court in order to deal with the aforesaid contention advanced on behalf of the appellant requires to refer herein the exceptions as enshrined under Section 300 of the Indian Penal code which reads as under:- Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations (a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. (b) Y gives grave and sudden provocation to, A, A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence. (f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. (f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Exception 2.—Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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. Exception 5.—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.” Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Exception 5.—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.” Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.” So far as exception 1 as referred under Section 300, by which, the culpable homicide is not murder, if the offender, whilst deprived of the power of self-control by grave and sudden provocation caused the death of the person who gave the provocation or causes the death of any other person by mistake or accident. 26. The argument has been advanced by taking the prosecution version to be correct on behalf of the appellant that the appellant while quarrelling with the deceased has lost his self-control by grave and sudden provocation which led him to rush to his house and came with Bhala in his hand and had assaulted the deceased which led to his death. 27. The argument has also been advanced that exception 4 to Section 300 may also apply in the facts of the given case which provides that 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. 28. Learned Amicus has submitted that the fact demonstrates that while giving assault with Bhala upon the deceased, there was no premeditation, rather, it is in a sudden fight in the heat of passion, the occurrence took place. 29. The argument, therefore, has been advanced that the case at best be attracted under Section 304 Part-I or Part-II. 30. This Court in order to appreciate the aforesaid argument, deems it fit and proper to refer herein the scope and applicability of Part-I of Section 304 IPC. The Indian Penal Code, 1860 recognizes two kinds of culpable homicide. The first one is culpable homicide not amounting to Murder (Section 299 and 304 of the IPC) and another one is culpable homicide amounting to Murder (Section 300 and 302 of IPC). Section 304 of IPC provides punishment for culpable homicide not amounting to Murder. The Indian Penal Code, 1860 recognizes two kinds of culpable homicide. The first one is culpable homicide not amounting to Murder (Section 299 and 304 of the IPC) and another one is culpable homicide amounting to Murder (Section 300 and 302 of IPC). Section 304 of IPC provides punishment for culpable homicide not amounting to Murder. Under it there are two kinds of punishments applying to two different circumstances:- (i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description of a term which may extend to ten years and fine. (ii) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to 10 years, or with fine, or with both. The Hon‘ble Apex Court in the case of Jgriti Devi v State of Himachal Pradesh reported in (2009) 14 SCC 771 , it was held that the expression intention and knowledge postulate the existence of positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 and if it is only case of knowledge and not intention to cause death by bodily injury, then the same would be a case of second part of Section 304. It further appears from Part-I of Section 304 of the Indian Penal Code that for a case to fall under the first part of Section 304, the element of intention is mandatory. By intention it meant the expectation of the consequences in question and intention does not therefore necessarily involve premeditation or thinking out the killing beforehand. If a person performing some act either (1) expects death to be consequences thereof; or (2) expects a dangerous bodily injury likely to cause death; or (3) knows that death is likely consequence thereof, and in each case death ensues, his intention in the first two cases and knowledge in the third mentioned circumstance. If a person performing some act either (1) expects death to be consequences thereof; or (2) expects a dangerous bodily injury likely to cause death; or (3) knows that death is likely consequence thereof, and in each case death ensues, his intention in the first two cases and knowledge in the third mentioned circumstance. In the case of Balwinder Singh v State of Punjab reported in 1989 Cr.L.J. 718 Punjab, has held that for absence of intention to cause death or knowledge that it might cause death, the accused cannot be held guilty for murder or culpable homicide not amounting to murder. He was convicted under section 448 (trespass) and 325 (grievous hurt by blunt weapon) of IPC. It further appears that the first and second clause of section 299 of the Indian Penal Code requires intention. Where the intention is to cause death the offence is murder unless the case falls under one of the exceptions mentioned in Section 300. If the exception does not apply, the first part of Section 304 will regulate the punishment. In the case of Purna Padhi v State of Orissa reported in 1992 Cr.L.J. 687 Orissa the deceased by the two accused person sustained multiple injuries by sharp cutting weapons. The injury on the right foot of the victim led to the amputation of the right foot from the level of the ankle. The victim was moved to hospital where 18 days after the occurrence the deceased died due to Uremia. As to the injury on the foot the High Court held that the offence committed could not be said to be murder. But no doubt by causing the foot injury along with others with sharp weapons, the accused must have intended to cause such bodily injury as was likely to cause death and the offence thus attracts the mischief of Part-I of Section 304 of IPC and the accused were convicted under Section 304 Part-I of IPC. It further appears from the fact of the case of Matal Kisku v State of Jharkhand reported in 2006 Cr.L.J. 2517 Jharkhand that after the quarrel between the accused and the deceased, the deceased was hit by an iron rod by the accused. Thus injuries to the deceased were caused by the accused without premeditation and allegation of acting in a cruel or unusual manner was baseless. Thus injuries to the deceased were caused by the accused without premeditation and allegation of acting in a cruel or unusual manner was baseless. Conviction of accused was altered from 302 to one under section 304 Part-I. It is, thus, evident that for attracting the ingredients of Section 304 Part-I of the Indian Penal Code the first and foremost condition to be fulfilled as stipulated in first and second Clause of Section 299 of the Indian Penal Code requiring intention. Where the intention is to cause death the offence is murder unless the case falls under one of the exceptions mentioned in Section 300 of the Indian Penal Code. This Court, while dealing with the applicability of Section 300 of the Indian Penal Code, has considered the judgment rendered by the Hon’ble Apex Court in the case of Virsa Singh Vrs. State of Punjab, reported in (1958) S.C.R. 1495, wherein, it has been laid down that: “The prosecution must prove the following facts before it can bring a case under S. 300 ‘3rdly’. First, it must establish, quite objectively, that a bodily injury is present; secondly the nature of the injury must be proved. These are purely objective investigations. It must be proved that there was an intention to inflict that particular injury, that is to say that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and, fourthly it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.” Further, consideration of judgment rendered by the Hon’ble Apex Court in the case of State of Andhra Pradesh Vrs. Rayavarapu Punnayya & Anr., reported in 1977 SCR (1) 601, wherein, it has been pleased to hold as under:- “Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. Rayavarapu Punnayya & Anr., reported in 1977 SCR (1) 601, wherein, it has been pleased to hold as under:- “Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the “intention to cause death” is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words “likely to cause death” occurring in the corresponding clause (b) of Section 299, the words “sufficient in the ordinary course of nature” have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of “probable” as distinguished from a mere possibility. The words “bodily injury … sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant v. State of Kerala [ AIR 1966 SC 1874 : 1966 Supp SCR 230 : 1966 Cri LJ 1509.] is an apt illustration of this point.” Further, consideration of the judgment rendered by the Hon’ble Apex Court in the case of Pulicherla Nagaraju @ Nagaraja Reddy Vrs. State of Andhra Pradesh, reported in (2006) 11 SCC 444 , wherein, it has been held at paragraph-29 that: “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. 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. 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.” On the basis of the proposition so laid down by the Hon’ble Apex Court in the case of Prasad Pradhan & Anr Vrs. The State of Chhattisgarh (Supra), wherein, it has been pleased to hold at paragraph-29 which reads as under:- “29. There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. The State of Chhattisgarh (Supra), wherein, it has been pleased to hold at paragraph-29 which reads as under:- “29. There can be no stereotypical assumption or formula that where death occurs after a lapse of some time, the injuries (which might have caused the death), the offence is one of culpable homicide. Every case has its unique fact situation. However, what is important is the nature of injury, and whether it is sufficient in the ordinary course to lead to death. The adequacy or otherwise of medical attention is not a relevant factor in this case, because the doctor who conducted the postmortem clearly deposed that death was caused due to cardio respiratory failures, as a result of the injuries inflicted upon the deceased. Thus, the injuries and the death were closely and directly linked.” 31. We, on the basis of the proposition laid down as under paragraph-29 by the Hon’ble Apex Court in the case of Prasad Pradhan & Anr Vrs. The State of Chhattisgarh (Supra) as quoted and referred hereinabove, is of the view that herein also the nature of injury sustained by the deceased at the time of occurrence was found to be serious and ultimately he succumbed to injury and therefore, the nature of injury is sufficient in the ordinary course to lead to death and as such, this Court after applying the proposition laid down by the Hon’ble Apex Court in the judgment rendered in the case as referred hereinabove, is the view that the argument which has been advanced on behalf of the appellant in this regard is having no force. 32. Accordingly, the same is hereby, rejected. 33. This Court in the entirety of the facts and circumstances is of the considered view that the judgment impugned requires no interference, accordingly, the instant appeal deserves to be dismissed. 34. In consequent thereto, a question has been put upon learned Amicus that sentence pertaining to conviction under Section 302 of the Indian Penal Code can be imposed without any fine. 35. Learned Amicus, in all fairness has submitted that it cannot be. 36. 34. In consequent thereto, a question has been put upon learned Amicus that sentence pertaining to conviction under Section 302 of the Indian Penal Code can be imposed without any fine. 35. Learned Amicus, in all fairness has submitted that it cannot be. 36. This Court, after having passed the order as aforesaid has considered the sentence and found therefrom that the order of sentence to undergo imprisonment for life for the offence committed under Sections 302 and 323 of the Indian Penal Code suffers from infirmity, reason being that Section 302 provides that along with the sentence of imprisonment, the fine is also mandatory to be inflicted as would appear from Section 302 of the Indian Penal Code, which reads as under:- “302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.” 37. The trial Court while imposing the sentence has not considered the mandatory provision as contained under Section 302 of the Indian Penal Code and passed the order of sentence without inflicting any fine, therefore, the order of sentence is modified to the extent that apart from the sentence to undergo imprisonment for life, a fine of Rs.5,000/-(Rupees Five Thousand) to the appellant, i.e., appellant no.1, is hereby imposed. 38. With the aforesaid modification in the order of sentence, the instant appeal stands dismissed. 39. Consequent upon dismissal of the appeal preferred by the appellant, since the appellant, i.e., appellant no.1, namely, Sudhir Rawani who is enjoying suspension of sentence after the order being passed by this Court directed to release him during pendency of the appeal, his bail bond is cancelled and he is directed to surrender before the learned trial Court who would send him jail to serve out his remaining sentence. 40. Needless to say that if the appellant will not surrender, the trial Court will take endeavours for securing custody of the appellant to serve out his remaining sentence and further secure that he will deposit the amount of fine so imposed by this Court. 41. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. 42. The Member Secretary, Jharkhand High Court Legal Services Committee is to reimburse the admissible fee in favour of Mrs. 41. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment. 42. The Member Secretary, Jharkhand High Court Legal Services Committee is to reimburse the admissible fee in favour of Mrs. Amrita Banerjee, learned amicus who has been appointed as amicus vide order dated 23rd April, 2019.