JUDGMENT : R. Mukhopadhyay, J. Heard Mr. B. M. Tripathy, learned senior counsel for the appellant and Mrs. Nehala Sharmin, learned Special P. P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 29.06.1999 (sentence passed on 30.06.1999) passed by Shri Raj Narayan Singh, learned 1st Additional Sessions Judge, Dhanbad in S. T. No. 299 of 1991 whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/34 of I.P.C. and have been sentenced to undergo imprisonment for life. 3. The prosecution case arises out of the fard beyan of Anand Mohan Gorai recorded on 17.02.1989 at 11:30 A.M. wherein it has been stated that at 9:00 A.M., he had gone to bring tomatoes when near the Shiv Mandir, he saw Satish Chandra Gorai, Nagendra Nath Gorai and Mogen Gorai getting the wall constructed by a mason touching upon the wall towards the western side of his garden. When he objected to such construction and asked them to construct the wall in a space of 6 inches from his wall, they did not listen and instead started quarrelling and Satish Chandra Gorai gave a lathi blow which was fended off with his right hand. The informant rushed back home and informed about the matter to his son Meghnath Gorai and thereafter both of them again went to his garden and they asked the accused not to construct the wall, but Satish Chandra Gorai gave a lathi blow upon Meghnath Gorai which he stopped with his hand. Seeing the aggressive behaviour of the accused, the informant and his son returned back and the informant sent his son Meghnath Gorai to Domegarh to call his another son Jitendra Nath Gorai. He has stated that once again he rushed to his garden at 10:30 A.M. accompanied by his sons Meghnath Gorai and Jitendra Nath Gorai. It has been alleged that Jitendra Nath Gorai was trying to make the accused understand at which the accused persons threatened to kill them and immediately thereafter, Satish Chandra Gorai assaulted Jitendra Nath Gorai on his head with a lathi and Jitendra Nath Gorai fell down on the earth in an injured condition. At this Mogen Gorai assaulted Jitendra Nath Gorai with a lathi while Nagendra Nath Gorai assaulted him with a Kulhari. At this Mogen Gorai assaulted Jitendra Nath Gorai with a lathi while Nagendra Nath Gorai assaulted him with a Kulhari. The mother of Satish Chandra Gorai namely Chhepi Gorai has assaulted the informant with a brick. The villagers had arrived and they managed to pacify the situation. The injured Jitendra Nath Gorai was taken to FCI hospital, but on the way he died. 4. Based on the aforesaid allegations, Sindri P. S. Case No. 17 of 1989 was instituted against four accused persons under Sections 302/323/337/34 of I.P.C. On completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the court of Sessions where it was registered as S. T. No. 299 of 1991. Charge was framed against the accused persons under Section 302/34 of I.P.C. which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 9 witnesses in support of its case. 6. P.W. 1 – Meghnath Gorai has stated that the incident is of 17.02.1989 at 10:00 A.M. when he was in his house while his father had gone outside and returned at 8:00 A.M. He thereafter left for the garden to bring tomatoes and after 5-10 minutes, he came back and disclosed that Satish Chandra Gorai, Nagendra Nath Gorai and Mogen Gorai were constructing a wall touching upon their wall. When he objected, he was assaulted with a lathi. At this he and his father went to the said place and he had told the accused persons to construct the wall at a gap of six inches from their wall. The accused persons did not listen and Satish Chandra Gorai gave a lathi blow which was defended with his hand. He and his father came back and he went to call his elder brother Jitendra Nath Gorai to Domegarh. After his elder brother came, he along with his father and elder brother went to the place of occurrence. Jitendra Nath Gorai tried to persuade them to construct the wall at a distance of 6 inches from their wall which made the accused persons agitated and Satish Chandra Gorai gave a lathi blow on Jitendra Nath Gorai and Nagendra Nath Gorai has assaulted his brother with a Kulhari. Mogen Gorai had assaulted his brother with a lathi. Jitendra Nath Gorai tried to persuade them to construct the wall at a distance of 6 inches from their wall which made the accused persons agitated and Satish Chandra Gorai gave a lathi blow on Jitendra Nath Gorai and Nagendra Nath Gorai has assaulted his brother with a Kulhari. Mogen Gorai had assaulted his brother with a lathi. His brother fell on the ground in an unconscious state. His father was assaulted by Satish Chandra Gorai by lathi, but his father had caught the lathi and a tussle ensued but the mother of Satish Chandra Gorai namely Chhepi Devi had given a blow with brick on the waist of his father and the lathi was pushed out of his hand. He has stated that Jitendra Nath Gorai was brought home and from there to Sindri Hospital, where the doctors declared him dead. The incident of assault had been seen by Kashi Nath Gorai, Hiren Chandra Gorai, Manik Gorai, Sapan Sarkar, Subhash Sarkar, Deepak Gorai, Bhawani Gorai and others. In cross-examination, he has deposed that the garden where his father had gone to bring tomatoes is surrounded by high wall at all sides. On the western side of the wall, is the field of the accused. The field of the accused is not surrounded by wall. Prior to the incident, the accused persons had already constructed a wall on the western side and the wall was to be constructed on the northern and southern side and so far as the southern side is concerned, the same already had a wall constructed by them. The incident occurred when the accused persons were constructing the wall on the northern side. He and his brother and father had tried to prevent the construction of the wall. When the first incident of assault has been taken place, the matter was not informed to the police and the second incident was also not reported to the police. The distance from his house to Sindri Police Station is covered in 15 minutes by scooter. He has deposed that he had not informed any of the villagers about the incident. When his father had returned home after the first assault, he had not shown the injury. When he had gone for the first time, Mogen Gorai had not assaulted him with lathi. He has deposed that he had not informed any of the villagers about the incident. When his father had returned home after the first assault, he had not shown the injury. When he had gone for the first time, Mogen Gorai had not assaulted him with lathi. He and his father had not taken Jitendra Nath Gorai to the hospital and he was taken to the hospital by the villagers. Jitendra Nath Gorai had died at the place of occurrence itself. The police had recorded his statement on the date of occurrence. 7. P.W. 2 – Hiren @ Hiru Gorai has not supported the case of the prosecution and has been declared hostile by the prosecution. 8. P.W. 3 – Deepak Kumar Gorai was in his house and on hearing some commotion, he had gone to the field of Anand Mohan Gorai, where he had seen Satish Gorai, Mogen Gorai and Nagen Gorai constructing a wall touching upon the wall of Anand Mohan Gorai. When Anand Mohan Gorai objected, he was assaulted by lathi. Anand Mohan left the place in order to come back with his son. He has stated that Satish Gorai assaulted Meghnath with a lathi which resulted in an injury suffered by Meghnath on hand. After 10 minutes, Jitendra Nath Gorai came and Satish Gorai had assaulted him on his head with a lathi, as a result of which he fell down on a ground. Nagendra Nath Gorai with a Kulhari, Mogen Gorai with a lathi and Chhepi Gorai with stones and brick had also assaulted Jitendra Nath Gorai. When Anand Mohan had caught hold of the lathi of Satish Gorai, he was assaulted by Chhepi with a stone. When the villagers had assembled, they had taken Jitendra Nath Gorai to his house and thereafter to the hospital, where he breathed his last. In cross-examination, he has deposed that no one from the village had accompanied him to the place of occurrence. When he reached the place of occurrence, Anand Mohan and Meghnath were not present and later on both had come. Anand Mohan was trying to prevent the construction of the wall by his hand. When Anand Mohan came for the first time to the place of occurrence and went away, he was in his field where he stayed for 5-6 minutes. Anand Mohan, Meghnath and Jitendra Nath Gorai had been given one lathi blow each. Anand Mohan was trying to prevent the construction of the wall by his hand. When Anand Mohan came for the first time to the place of occurrence and went away, he was in his field where he stayed for 5-6 minutes. Anand Mohan, Meghnath and Jitendra Nath Gorai had been given one lathi blow each. When the police had come, their statements were recorded. 9. P.W. 4 – Bhawani Gorai did not support the case of prosecution and was declared hostile. 10. P.W. 5 – Anand Mohan Gorai is the informant who has stated that on 17.02.1989 at 8:00 A.M., he had gone to his garden to bring vegetables. The land of Satish Gorai is beside his garden. He was asked to leave the space between the garden and the field of Satish Gorai. Satish Gorai was getting the wall constructed by encroaching upon his land. He objected by saying not to raise the wall touching upon his wall at which Satish Gorai struck him with lathi on his right hand and he went back to his house. He again went to the place of occurrence with his son Meghnath and Satish Gorai had given a lathi blow upon his son which was stopped by his son with his left hand. He and his son went back home and he had asked Meghnath to call his son Jitendra Nath Gorai. When Jitendra Nath Gorai came, he along with Meghnath and Jitendra Nath had returned back to the place of occurrence. Satish Gorai gave a call to commit assault upon them and Satish Gorai gave a lathi blow on the head of Jitendra Nath Gorai and he fell down. Mogen Gorai and Nagendra Nath Gorai had both assaulted Jitendra Nath Gorai with lathi. He had caught hold of the lathi of Satish Gorai and when a tussle was going on, the mother of Satish, Chhepi Gorai has assaulted him on his back with a brick. He has stated that Jitendra was taken to his house and thereafter to Sindri Hospital, where he was declared dead by the doctor. The police had come and had recorded his fard beyan and he has identified his signature in the fard beyan which has been marked as Exhibit 1. In cross-examination, he has deposed that the house of Murali Mandal and Basudeo are adjacent to the place of occurrence. The police had come and had recorded his fard beyan and he has identified his signature in the fard beyan which has been marked as Exhibit 1. In cross-examination, he has deposed that the house of Murali Mandal and Basudeo are adjacent to the place of occurrence. The other houses are at the distance of 400-500 yards from the place of occurrence. He has stated that Jitendra Nath Gorai used to stay in the quarter of FCI which is at the distance of 2 kms from his house. He has not given any information to the police station. He has deposed that Satish Chandra Gorai also works in FCI. The land belonging to him comprising of 20 decimals is bounded from all the four sides. In the land of the accused, boundary wall was being constructed. When he had bounded his land, there was no dispute with the accused persons. There is no witness to the accused constructing a wall on the land which was left vacant by him. He has thereafter stated that a settlement was arrived at and he had stated that he is leaving a vacant space of 6 inches. He had gone to the garden, but he had not taken danda with him. He had suffered an injury as one blow was given to him with lathi. After his injured son has taken to the hospital, he had conversed with everyone, but he had not disclosed the incident to anyone. 11. P.W. 6 – Dr. Binod Kumar was posted at Patliputra Medical College and on 17.02.1989, he had conducted autopsy on the dead body of Jitendra Nath Gorai and had found the following injuries: “(i) Lacerated wound 1 ½ “ x ½ “ x scalp deep antero posteririorly on the right front parietal region. (ii) Lacerated wound 2” x ½ “ x scalp deep antero posteriorly on the left front of parietal region of the head (iii) Abrasion ¾ “ x ¼ “ on the upper third of right forearm. ON DISSECTION: Both sides chamber of the heart were partly filled with blood. Stomach contained about 2 ounce pasty food matter. All the internal organs were mildly congested. Urinary bladder was partially filled. Fronto Perietal suture was separated. On both sides linear fracture 3” long over left parietal bone was seen. ON DISSECTION: Both sides chamber of the heart were partly filled with blood. Stomach contained about 2 ounce pasty food matter. All the internal organs were mildly congested. Urinary bladder was partially filled. Fronto Perietal suture was separated. On both sides linear fracture 3” long over left parietal bone was seen. ½ “ thick extra dural blood clot was found over both parietal region, Meninges were congested. Sub dural haematoma was seen over left hemisphere of brain. The brain was congested.” The cause of death was opined to be on account of intra cranial haemorrhage caused by hard and blunt force impact. He has proved the duplicate copy of the post mortem report which has been marked as Exhibit 2. He has stated that the above injuries are possible by lathi and back portion of Tangi. 12. P.W. 7 – Dr. Subal Gorai has identified his signature and the signature of Raj Kumar in the inquest report which has been marked as Exhibit 1/1 and 1/2. 13. P.W. 8 – Dr. Geeta Kanth was posted at Sindri State Dispensary and on 17.02.1989, she had examined Meghnath Gorai and had found the following injuries: (i) Pain in left hand near thumb. (ii) Pain in left little finger. (iii) Haemotoma over right parietal bone. (iv) Abrasion over left side chest about 3” x ¼ .” On the same day, she had examined Anand Mohan Gorai and had found the following injuries: (i) An abrasion and a laceration over right forearm laterally 8” x 1”. (ii) Pain in left forearm. (iii) Pain and swelling over left side of hip. She had opined that the injuries are possible by lathi and hard and blunt object. 14. P.W. 9 – Ram Prabhanjan Choudhary was posted at Sindri Police Station and on 17.02.1989 on 11:10 A.M., he had received an O.D. slip from FCI hospital and after making a general diary entry, he had proceeded to FCI hospital, where it was stated that the dead body of Jitendra Nath Gorai was kept in the Dead Body Home. Since there was no relative of the deceased – Jitendra Nath Gorai, the body was taken to Sindri basti, where the fard beyan of Anand Mohan was recorded. He has proved the fard beyan which has been marked as Exhibit 3. The formal FIR has been proved and marked as Exhibit 4. Since there was no relative of the deceased – Jitendra Nath Gorai, the body was taken to Sindri basti, where the fard beyan of Anand Mohan was recorded. He has proved the fard beyan which has been marked as Exhibit 3. The formal FIR has been proved and marked as Exhibit 4. He had recorded the re-statement of the informant and had noted the injuries on his person for which a requisition was prepared. He had recorded the statement of Meghnath Gorai and a requisition was prepared with respect to the injuries suffered by Meghnath Gorai. Both the requisitions have been marked as Exhibit 5 and 5/1. He had also inspected the place of occurrence and had also seized the blood-stained earth for which a seizure list was prepared which was marked as Exhibit 1. He has seized the blood-stained stick from the house of Satish Chandra Gorai and the seizure list was prepared which has been marked as Exhibit 6/1. The inquest report was prepared which has been marked as Exhibit 7. The body was sent for post mortem examination to Sadar hospital, Dhanbad and the challan through which the dead body has been sent has been proved and marked as Exhibit 8. He has proved the inquest report which has been marked with objection as Exhibit 9 and 9/1. He had recorded the statement of Hiru Gorai and Bhawani Gorai, who have claimed themselves to be eye-witnesses to the occurrence. In cross-examination, he has deposed that he had given a requisition for examination of Nagendra Nath and he has also proved the injury report issued by Dr. Mahendra Prasad which has been marked as Exhibit A. The wall which was being constructed was in the land of the accused. 15. The statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they have denied their complicity in the offence. 16. The defendant has examined one witness in support of his case. 17. D.W. 1 – Dr. Mahendra Prasad was posted as Medical Officer at State Dispensary, Goshala and on 17.02.1989, he had examined Nagendra Nath Gorai and had found the following injuries: “Lacerated wound on the head 3” above the frontal part of the head. 16. The defendant has examined one witness in support of his case. 17. D.W. 1 – Dr. Mahendra Prasad was posted as Medical Officer at State Dispensary, Goshala and on 17.02.1989, he had examined Nagendra Nath Gorai and had found the following injuries: “Lacerated wound on the head 3” above the frontal part of the head. 1” x ½ “ x ¼ “ which was simple in nature caused by hard and blunt substance such as lathi.” The injuries were opined to be simple in nature caused by hard and blunt object such as lathi. 18. It has been submitted by Mr. B. M. Tripathy, learned senior counsel for the appellants that it was the informant party who were the aggressors and by repeatedly trespassing into the land of the appellants, the informant and his sons had provoked the free fight. It has been submitted that the injury suffered by the appellant – Nagendra Nath Gorai on his head is a testament to the aggression of the informant and his sons. It would further appear that the aggressors were armed with lathi and there was a pre-meditated act on the part of the informant and his sons to prevent construction of the wall by the appellants on their own land. It has been submitted that P.W. 1 and P.W. 5 are the eye-witnesses to the occurrence and so far as the P.W. 3 is concerned, his presence has not been noticed by either P.W. 1 or P.W. 5. The material witnesses examined are all interested witnesses being related to the deceased Jitendra Nath Gorai. The post mortem report also does not corroborate the manner of assault and it has not been ascertained by the prosecution that the blood-stained stick recovered from the house of Satish Chandra Gorai was the murder weapon in absence of any FSL report. 19. Mrs. Nehala Sharmin, learned Special P. P. has submitted that P.W. 1, P.W. 3 and P.W. 5 are the eye-witnesses who have categorically stated about the assault committed by the appellants in a concerted manner which resulted in the death of Jitendra Nath Gorai. In spite of repeated objections, the appellant carried out their nefarious act of construction of the boundary wall and indiscriminate act of assault upon Jitendra Nath Gorai clearly seems to be premeditated as all the appellants were armed with lathi, Kulhari etc. 20. In spite of repeated objections, the appellant carried out their nefarious act of construction of the boundary wall and indiscriminate act of assault upon Jitendra Nath Gorai clearly seems to be premeditated as all the appellants were armed with lathi, Kulhari etc. 20. We have heard the learned counsel for the respective parties and have also perused the lower court records. 21. What would transpire from the prosecution case is that the informant had objected to the construction of a wall adjacent to the wall of the informant and this prompted Satish Chandra Gorai (appellant no. 1) to inflict a lathi blow upon the informant. The informant did not raise any alarm and nonchalantly returned back to his house and again came back to the place of occurrence with his son Meghnath Gorai. This resulted in an assault committed upon Meghnath Gorai and both the father – son duo returned back to their house and the elder son of the informant namely, Jitendra Nath Gorai (deceased) was called from Domegarh and all three had once again gone to the place of occurrence to prevent the construction of the wall and this visit proved fatal as Jitendra Nath Gorai was assaulted with lathi and Kulhari leading to his death. P.W. Nos. 1, 3 and 5 are the eye-witnesses and so far as the P.W. 1 and P.W. 5 are concerned, they are the injured witnesses as well. So far as the P.W. 3 is concerned, although he claimed to be an eye-witness, but his presence at the place of occurrence has not been noted either by P.W. 1 or P.W. 5 except fleetingly. Moreover, the role of P.W. 3 seems to be of a bystander as though the informant is his uncle and Meghnath and Jitendra Nath is his cousin brother, he has not made any attempt to pacify the situation or to protest against the purported assault committed by the appellants. The evidence of the Investigating Officer (P.W. 9) reveals that the plot of land where the appellants were constructing the land belonged to them. The informant (P.W. 5) as it seems had repeatedly visited the place of occurrence and each time, he was as per his own version greeted with lathi blow upon him and his sons and lastly on his deceased son Jitendra Nath Gorai. The informant (P.W. 5) as it seems had repeatedly visited the place of occurrence and each time, he was as per his own version greeted with lathi blow upon him and his sons and lastly on his deceased son Jitendra Nath Gorai. It would therefore appear to be a continuous provocation on the part of the P.W. 5 and his sons which resulted in the incident. Instead of solving the issue himself, he could have approached the police station which was very near to the place of occurrence. The solitary injury suffered on the head by the appellant Nagendra Nath Gorai also seems to suggest that the informant party were armed and either the assault was initiated by them or it was done by way of retaliation. The witnesses are silent to that aspect and the prosecution has also failed to explain the circumstances leading to such injury. The independent witnesses who have been examined by the prosecution – P.W. 2 and P.W. 4 have been declared hostile and the entire prosecution case rests upon the evidences of P.W. Nos. 1, 3 and 5. Though, we have doubted the evidence of P.W. 3 as eye-witness in view of the reasons enunciated above, the overall conspectus of the case reveals transgression into the land of the appellant by the informant and his sons and repeated actions provoked an act of assault by them which was not repeated and there was absence of any premeditated action on their behalf to commit the murder. The case would therefore come within the four corners of Exception IV to Section 300 of I.P.C. The act of the appellant though initially was a trivial one, but precipated to an assault on Jitendra Nath Gorai leading to his death on being repeatedly provoked by raising objection for construction of a wall which was in the land of the appellant. There seems to be no intention of the appellants to commit the murder of Jitendra Nath Gorai as the same was done at the spur of the moment being sufficiently disheartened and distraught by the repeated intervention of the informant and there was no repetition of blows by either of the appellants. There seems to be no intention of the appellants to commit the murder of Jitendra Nath Gorai as the same was done at the spur of the moment being sufficiently disheartened and distraught by the repeated intervention of the informant and there was no repetition of blows by either of the appellants. Such act would indeed fall within the Section 304 Part II and accordingly we modify the conviction of the appellants to the offence under Section 304 Part II of the I.P.C. So far as the sentence is concerned, the incident is of 1989 and it has been 35 years, the appellants are facing the rigors of the trial. All the appellants have remained in custody for different periods. We therefore, sentence the appellants to the period already undergone by them in custody. 22. This appeal is dismissed with the aforesaid modification in the conviction of the appellant and consequent sentence imposed upon them. 23. Pending I.A.s, if any are closed.