JUDGMENT : Subhash Chand, J. Criminal Appeal (DB) No. 168 of 2015 has been directed on behalf of the appellant Narayan Hembram @ Naran Hembram against the judgment of conviction dated 12.10.2012 wherein the appellant Narayan Hembram @ Naran Hembram was convicted for the offence under section 302 of the Indian Penal Code and sentenced with imprisonment for life and a fine of Rs. 5,000/-. 2. Criminal Appeal (SJ) No. 78 of 2013 has been directed on behalf of the appellant Sunil Hambram @ Sunil Hembram against the judgment of conviction dated 12.10.2012 wherein the appellant was convicted for the offence under section 324 of the Indian Penal Code and sentenced with rigorous imprisonment of three years. 3. Both these appeals have been directed against one and same case crime, therefore, both are decided by this common judgment. 4. The brief facts of the prosecution case leading to these Criminal Appeals are that the fardbeyan of the informant Kanahailal Hembram was recorded on 23.10.2005 at 10:30 in night at the Primary Health Centre in which the allegations are made that his uncle Supai Hembram had cut the tree of Neem, Choula and Haat standing on his own land. His uncle and the informant went to their agriculture field and in their absence, Sunil Hembram, Anil Hembram, Narayan Hembram, Jeebu Hembram, all resident of Sunsuniya, P.S. Chakulia, District-East Singhbhum, Jharkhand had taken the wood of those cut tree to their house. When his uncle, his grandfather and he, came back to their house in the evening, found the wood of the cut trees missing. On making queries, it came to know all the above four accused had taken the same to their house. Thereafter he, his grandfather Parav Hembram and his uncle Supai Hembram reached at 8:30 in the evening to the house of Sunil Hembram in regard to the whereabout of the woods of the cut tree. On this very issue, Sunil Hembram armed with axe assaulted on his head. Anil Hembram who was armed with the lathi assaulted on the hand of Parav Hembram, the grandfather of the informant. Narayan Hembram and Jeebu Hembram both were armed with the lathi had assaulted on the back arm. On raising alarm, the persons of the locality attracted there and the informant Kanhailal Hembram and his grandfather Parav Hembram, both were taken to the Primary Health Centre, Chakulia for treatment. Narayan Hembram and Jeebu Hembram both were armed with the lathi had assaulted on the back arm. On raising alarm, the persons of the locality attracted there and the informant Kanhailal Hembram and his grandfather Parav Hembram, both were taken to the Primary Health Centre, Chakulia for treatment. On this very written information, Chakulia Case Crime No. 68 of 2005 was registered under Sections 341, 324, 307 read with 34 of the Indian Penal Code against Sunil Hembram, Anil Hembram, Jeebu Hembram and Narayan Hembram and after death of Prav Hembram, the Section 302 of Indian Penal Code was also enhanced. 5. The Investigating Officer after having concluded the investigation filed charge-sheet against the four accused persons Sunil Hambram @ Sunil Hembram, Narayan Hembram @ Naran Hembram, Anil Hembram and Jeebu Hembram for the offence under sections 341, 323, 307, 302 read with 34 of IPC. Out of the four persons, two accused persons Anil Hembram and Jeebu Hembram being juvenile their case was separated and was sent to trial to the Juvenile Court. 6. The charge was framed against both the two accused Sunil Hembram and Narayan Hembram. The charge was read over and explained to both the accused persons who denied the same and claimed to face the trial. 7. On behalf of the prosecution to prove the charge against both the accused persons in oral evidence examined altogether nine witnesses i.e. PW1-Vikram Hembram, PW2-Chatra Hembram, PW3-Bhim Mardi, PW4-Samu Hembram, PW5-Somai Hembram, PW6-Supai Hembram, PW7-Kanahailal Hembram, PW8-Dr. J. Sriniwas Rao and PW9-Dr. Harendra Kumar Alok and in documentary evidence, the prosecution has adduced Exhibit-1 inquest report, Exhibit-2 signature of Kanhailal Hembram on the fardbeyan; Exhibit-2/1, signature of Singrai Hembram on the fardbeya, Exhibit-3 postmortem report, Exhibit-4 injury report. 8. The statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, in which, both the accused persons denied the incriminating circumstances in evidence against them and stated themselves to be innocent. 9. The learned Trial Court after hearing the rival submission of the learned counsel for the parties passed the impugned judgment of conviction dated 12.10.2012 and the order of sentence dated 17.10.2012 holding guilty Narayan Hembram for the offence under Section 302 of Indian Penal Code and Sunil Hembram for the offence under Section 324 of Indian Penal Code and sentenced them as stated hereinabove. 10. 10. Aggrieved from the impugned judgment of conviction and sentence, Criminal Appeal (DB) No. 168 of 2015 was filed on behalf of Narayan Hembram @ Naran Hembram and Criminal Appeal (SJ) No. 78 of 2013 was filed on behalf of Sunil Hembram @ Sunil Hembram. 11. We have heard the learned counsel for the appellants and learned APPs for the State and perused the material available on record. 12. Learned counsel for the appellant Sunil Hambram @ Sunil Hembram has submitted that the appellant has been convicted for the offence under section 324 of IPC and sentenced for three years without assigning any reason on wrong appreciation of the evidence. No alleged offence is proved against the appellant from the evidence on record. 13. Learned counsel for the appellant Narayan Hembram @ Naran Hembram has submitted that the impugned judgment of conviction and sentence passed against the appellant is based on wrong appreciation of the evidence. Learned trial court has not appreciated the evidence on record in proper perspective. The very intention and knowledge which is required for the offence of murder is not proved from the prosecution evidence. As the more the appellant would have been convicted for the offence under section 304 of IPC. In view of the above contended to allow the appeal and to set aside the impugned judgment of conviction and sentence. 14. Per contra learned APPs on behalf of the prosecution in both the criminal appeals have vehemently opposed the contentions made by the learned counsel for the appellants and have stated that the impugned judgment of conviction and sentence passed by the learned trial court is based on the proper appreciation of the evidence on record, same bears no infirmity and needs no interference, accordingly, contended to dismiss both the appeals. 15. In order to decide the legality and propriety of the impugned judgment of conviction and the order of sentence passed by the learned Trial Court, we would like to appreciate the evidence adduced on behalf of the prosecution which is reproduced hereinbelow: 15.1 PW1-Vikram Hembram, in his examination-in-chief says the occurrence was of 23.11.2005 at 8:30 of night. He was at his house. Hearing the noise, he came out of his house and saw Kanahailal Hembram injured whose had sustaining injury on the forehead and Prav Hembram was lying on the ground. Sunial Hembram was armed with axe. He was at his house. Hearing the noise, he came out of his house and saw Kanahailal Hembram injured whose had sustaining injury on the forehead and Prav Hembram was lying on the ground. Sunial Hembram was armed with axe. Jeebu Hembram, Anil Hembram and Narayan Hembram, all were armed with lathi. Prav Hembram died in the hospital. His inquest report was prepared, he also put his signature thereon which he identified marked as Exhibit-1. In cross-examination this witness says the place of occurrence is after four or five house from his own house. Anil and Jeebu Hembram both were armed with lathi and both assaulted. He remained at the place of occurrence for ten minutes. The other persons of the village were also present there. Kanahailal Hembram had two injuries on his forehead. Prav Hembram had also injuries on his body which he could not see. 15.2 PW2-Chatra Hembram, in his examination-in-chief says that the occurrence was of five years ago at 8’o’clock in night. Hearing the noise he also reached to the place of occurrence which was house of Sunil and saw Kanahailal who had sustained injuries on his forehead and Prav was lying on the ground after having sustained injuries. The injury was on the head of Prav also. Sunil was armed with tangi. Narayan, Jeebu who were armed with lathi. Sunil had assaulted to Prav. In cross-examination this witness says after the occurrence, police did not meet him. 15.3 PW3-Bhim Mardi, in his examination-in-chief corroborated the prosecution story. In cross-examination this witness says police never interrogated him. He is giving statement for the first time in Court. 15.4 PW4-Samu Hembram, in his examination-in-chief says that he had heard in regard to the occurrence from Kanahailal Hembram who told him that on the issue of wood, Sunil, Narayan, Anil and Jeebu, all assaulted them. Kanahailal had sustained injury on the head. Prav died in the hospital on account of sustaining injury. This witness in cross-examination says that police did not interrogate him. 15.5 PW5-Somai Hembram, in his examination-in-chief says that the occurrence was of 23.10.2005 at 8’o’clock in the evening of night, he was returning from his agriculture field. When he reached near the house of Sunia, he saw Kanahailal, Supai and Prav Hembram there. This witness in cross-examination says that police did not interrogate him. 15.5 PW5-Somai Hembram, in his examination-in-chief says that the occurrence was of 23.10.2005 at 8’o’clock in the evening of night, he was returning from his agriculture field. When he reached near the house of Sunia, he saw Kanahailal, Supai and Prav Hembram there. All these three who were asking to Sunil why the wood of the cut dried trees were brought by them to his house. On this very issue, Sunil assaulted with axe on the head of Kanahailal. Narayan, Jeebu, Anil assaulted to Prav with lathi on his back head and other parts of the body. Prav fell down on the ground on account of sustaining injuries. Injured were taken to the hospital Chakulia from there he was referred to Jamshedpur and amid the way to Jamshedpur, Prav died. In cross-examination this witness says Narayan is his real elder brother. On the date of occurrence, he had gone to his agriculture field at 6 O’clock in the evening and remained there for one and half hours till 7:30. When he came back, it was dark night. He reached to the place of occurrence after 8 O’clock. 15.6 PW6-Supai Hembram, in his examination-in-chief says the occurrence is of 23.10.2005 at 8 O’clock in night. He had come back to his house from the agriculture field at 5 O’clock and saw the wood of the cut dry tree was found missing from his house. Prav Hembram told that the woods were taken by Sunil Hembram by the bullockcart to his house. Then he, Prav Hembram reached to the house of Sunil and asked him in regard to the wood. Sunil, Narayan Hembram, Anil Hembram and Jeebu all began to quarrel. Sunil assaulted to Prav Hembram with the axe whereby Prav Hembram fell down on the ground sustaining injuries. Sunil and other accused persons dragged Prav inside his house. Kanahailal came to rescue, Sunil also assaulted with axe on the head of Kanahailal who sustained head injury. Blood was oozing. For treatment, the injured was taken to the hospital Chakulia and from there he was referred for better treatment to M.G.M. Hospital, Jamshedpur but amid the way to Jamshedpur, Prav died. Kanahailal was undergoing treatment at Chakulia hospital as well as Jamshedpur. In cross-examination this witness says the persons of the village had told that Sunil Hembram had taken the woods. Kanahailal was undergoing treatment at Chakulia hospital as well as Jamshedpur. In cross-examination this witness says the persons of the village had told that Sunil Hembram had taken the woods. He also told to family members of Prav and Kanahailal also in regard to missing of the woods. Panchayat was called at 5:30 in the evening and it was held that the wood were of the informants. He told to police that Sunil had assaulted with axe to Prav who fell down on the ground sustaining injuries and body of Prav was also dragged by the accused persons inside the house of Sunil. The place of occurrence is the house of Sunil. 15.7 PW7-Kanahailal Hembram, in his examination-in-chief says the occurrence is of 23.10.2005 at 8 O'clock in night his uncle Supai Hembram had cut the dry tree and they all had gone to the agriculture field came back at 5 O'clock in the evening to the house. His uncle Supai Hembram found the wood of the cut dry tree missing. On queries, it came to know that Sunil Hembram, Narayan Hembram, Anil Hembram and Jeebu had taken the same. He, his grand-father and uncle Supai Hembram all the three went to house of Sunil and asked in regard to the whereabouts of the wood. Sunil assaulted with axe on his head. Blood began to ooz from his head. Further a lathi blow was also given to Parav who fell down on the ground. Hearing hue and cry the persons of the village also attracted there, who also saw the occurrence. Among them were Bhim Hembram, Somai Hembram, Vikram Hembram and others. They also saw the occurrence on their own eye. He identified all the accused persons present in dock. Prav died within 24 hours of the occurrence. He had not seen the accused person from his own eye taking the wood to their house, who assaulted to whom in this occurrence he saw from his own eye. 15.8 PW8-Dr. J. Sriniwas Rao, in his examination-in-chief says on 25th October, 2005, he conducted the postmortem of Parav Hembram and found following external injuries: (i) Stitched wound 3 cm in length one stitch present over front of the head. (ii) Stitched wound 2 cm in length one stitch was over back of the head. (iii) stitched wound 4 cm in length over middle of the head. (ii) Stitched wound 2 cm in length one stitch was over back of the head. (iii) stitched wound 4 cm in length over middle of the head. (iv) Stitched wound 3 cm in length one stitch was found over middle of the head. (v) Lacerated wound 1 ½ cm x 0.5 cm x scalp deep over left side of the head. (vi) Contusion 4 cm x 2 cm over right side of forehead. (vii) Contusion 6 cm x 5 cm over back of left side chest. (viii) Abrasion 2 cm x 1 cm over right of face. (ix) Contusion ½ cm x over right eye-lid. (x) Contusion 6 cm x 4 cm over right forearm. (xi) Contusion 5 cm x 2 cm over right front upper chest. Internal Injuries (i) Contusion 13 cm x 11 cm right and left posterior parital occipital region of scalp. (ii) Contusion right and left parital occipital lobe of the brain. (iii) Fracture of redius and Ulna upper part right side. (iv) Fracture ribs left side 3rd and 4th. Opinion Injury No.1 to 11 were antimortem injuries and injuries No.5 to 11 was caused by hard and blunt object and injuries No.1 to 4 were the surgical wound. Opinion can be given by the attending surgeon. Cause of death was due to head injury. Time since death 18 to 24 hours from the time of postmortem examination. Postmortem report is in his pen and signature which he identified marked Exhibit-3. 15.9 PW9-Dr. Harendra Kumar Alok in his examination-in-chief says on 23rd October, 2005, he was posted at P.H.C. Chakulia as Medical Officer. He examined the injuries of Kanailal Hembram which is as under: (i) Lacerated wound 2” x 3/4” x ½” on left side of forehead. Advised x-ray A.P. and lateral and C.T. Scan of brain. (ii) Swelling 1½ x ¾” over upper portion of sternum. (iii) Swelling 1½ x ¾” over middle portion of left arm. Nature of injury-opinion regarding the injuries were reserved as the patient was referred to M.G.H. Hospital, Jamshedpur for further investigation and treatment. 16. Advised x-ray A.P. and lateral and C.T. Scan of brain. (ii) Swelling 1½ x ¾” over upper portion of sternum. (iii) Swelling 1½ x ¾” over middle portion of left arm. Nature of injury-opinion regarding the injuries were reserved as the patient was referred to M.G.H. Hospital, Jamshedpur for further investigation and treatment. 16. As per FIR case the eye-witness of the occurrence are PW6Supai Hembram and PW7-Kanailal Hembram who is also the informant and injured eye-witness of occurrence has stated that on 23.10.2005 his uncle Supai Hembram had cut the dry tree and wood thereof was also placed behind his house in Bari and they all had gone to the agriculture field, came back in the evening at 5 O' clock and found the wood of Supai Hembram missing. On queries, it came to know that it was accused persons Sunil Hembram, Narayan Hembram, Jeebu Hembram and Anil Hembram who had taken the same to their house of Sunil. His uncle Supai Hembram alongwith him and grand-father Parav Hembram went to the house of Sunil and made queries in regard to whereabouts of the missing wood. Sunil assaulted on his head with axe and Parav Hembram was also assaulted whereby Parav fell down on the ground due to sustaining injuries. All the accused persons have assaulted to Parav Hembram. Hearing the hue and cry the persons of the village Bhim Hembram, Somai Hembram, Vikram Hembram and Samu Hembram also attracted there. This witness also proved contents of the fardbeyan given to the police officer. He also says that he and his grandfather Parav both were taken to the hospital to Chakulia from there after giving his examination by the doctor in Chakulia his grand-father Parav was referred for further treatment to the hospital at Jamshedpur and amid the way his grand-father died. 17. The another eye-witness of the occurrence is Supai Hembram, this witness also says that the occurrence is of 23.10.2005 at 8 O'clock of night he had come back from the agriculture field to his house at 5 O'clock and found his wood cut of the dry tree missing and came to know that Sunil Hembram had taken the same by the bullockcart to his house. He alongwith Parav Hembram and Kanahailal Hembram reached to the house of Sunil Hembram and asked him in regard to the whereabouts of the missing wood. He alongwith Parav Hembram and Kanahailal Hembram reached to the house of Sunil Hembram and asked him in regard to the whereabouts of the missing wood. Sunil Hembram assaulted Parav Hembram with axe. Sunil also assaulted to Kanahailal Hembram with the axe when Kanahailal Hembram came to rescue of grand-father Parav Hembram. Both the injured were taken to the hospital for treatment at Chakulia from there they were referred to Jamshedpur, while in way to Jamshedpur Parav Hembram died. This witness also says that all the accused Sunil Hembram, Narayan Hembram, Anil Hembram and Jeebu Hembram began to fight on the issue of missing wood and all the accused persons also dragged to Parav Hembram in injured condition inside the house of Sunil. 18. The testimony of these two eye witnesses is also corroborated with the testimony of PW1-Vikram Hembram, PW2-Chatra Hembram, PW3-Bhim Mardi, PW4-Samu Hembram, PW5-Somai Hembram. Though PW1 to PW4 all reached to the place of occurrence and found injured Kanahailal Hembram and Parav Hembram lying on the ground on account of sustaining injury. 19. PW5-Somai Hembram is also the eye-witness of the occurrence. He in his statement has categorically stated that Narayan, Jeebu and Anil assaulted to Parav Hembram with lathi which hit on his back and forehead. Sunil Hembram has assaulted to Kanahailal Hembram with the axe which hit on his forehead. 20. The testimony of eye-witness PW5-Somai Hembram, PW6Supai Hembram and PW7-Kanahailal Hembram is also corroborated with the medical evidence. So far as the injury of Kanahailal Hembram injured eye witness PW7 are concerned, same have been proved by the witness PW9-Dr. Harendra Kumar Alok who has stated that there were three external lacerated wound: (i) Lacerated wound 2” x 3/4” x ½” on left side of forehead. Advised x-ray A.P. and lateral and C.T. Scan of brain, (ii) Swelling 1½ x ¾” over upper portion of sternum and (iii) Swelling 1½ x ¾” over middle portion of left arm. This doctor has not opined the nature of the injuries of injured Kanahailal Hembram. PW8-Dr. J. Sriniwas Rao has proved the postmortem report of deceased Parav Hembram who has stated eleven external injuries, injury no.i (one) to iv (four) were the stitched wound, v (five) was the lacerated wound, vi (six) and vii (seven) only contusions, viii (Eight) was the abrasion and ix (nine) to xi (eleven) are the contusions. PW8-Dr. J. Sriniwas Rao has proved the postmortem report of deceased Parav Hembram who has stated eleven external injuries, injury no.i (one) to iv (four) were the stitched wound, v (five) was the lacerated wound, vi (six) and vii (seven) only contusions, viii (Eight) was the abrasion and ix (nine) to xi (eleven) are the contusions. Injury no.1 stitched wound is shown on the front of the head and the cause of death is also shown shock and hemorrhage as a result of contusions. So far as the injury no.i to iv stitched wound are concerned the opinion was not given in regard to the nature of the injury. As such the medical evidence also corroborates the ocular evidence. 21. The learned counsel for the appellant Sunil Hambram @ Sunil Hembram in Criminal Appeal (SJ) No. 78 of 2013 has argued that the conviction of the appellant for the offence under section 324 is not made out against him. As such the conviction of him deserves to be set aside for the offence under section 324 of IPC. 21.1 From the very perusal of the impugned judgment passed by the learned trial court it is found that the learned trial court has convicted the appellant Sunil Hambram @ Sunil Hembram for the charge under section 324 of IPC taking into consideration the separate role attributed to him in commission of the alleged offence. 21.2 Herein the injury report of appellant Sunil Hambram @ Sunil Hembram has been proved by PW9-Dr. Harendra Kumar Alok as Exhibit-4. The injuries mentioned in the injury report of injured Kanahailal Hembram are shown as under: Injury no.i is the lacerated wound 2” x 3/4” x 1/2” on left side of forehead. Advised X-ray A.P. and lateral an C.T. Scan of brain. Injury No.ii is the swelling 1½ x 3/4” over upper portion of sternum and Injury No.iii is the swelling 1½” x 1” over middle portion of left arm. In this injury report, nature of the injury is not opined by PW9-Dr. Harendra Kumar Alok. In regard to the injury no.i the injured was advised for X-ray and also C.T. Scan. There is no X-ray report or C.T. Scan report of the injured Kanahailal Hembram on the file of trial court. In this injury report, nature of the injury is not opined by PW9-Dr. Harendra Kumar Alok. In regard to the injury no.i the injured was advised for X-ray and also C.T. Scan. There is no X-ray report or C.T. Scan report of the injured Kanahailal Hembram on the file of trial court. 21.3 It would be relevant to mention certain statutory provisions of Section 319 and Section 320 of the Indian Penal Code which reads as under: “319. Hurt.-Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt. 320. Grievous hurt.-The following kinds of hurt only are designated as “grievous”: First.- Emasculation. Secondly.-Permanent privation of the sight of either eye. Thirdly.-Permanent privation of the hearing of either ear. Fourthly.- Privation of any member or joint. Fifthly.-Destruction or permanent impairing of the powers of any member or joint. Sixthly.-Permanent disfiguration of the head or face. Seventhly.-Fracture or dislocation of a bone or tooth. Eighthly.-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 21.4 In the injury report of injured Kanahailal Hembram injury no.1 is the lacerated wound 2” x 3/4” x 1/2” on left side of forehead. Though, for this injury, the injured was advised for X-ray and C.T. Scan same was not done. Opinion in regard to nature of the injury no.1 was not given by the doctor for lack of X-ray or C.T. Scan report. 21.5 Taking into consideration the seat of the injury report which is on the forehead of the injured which is on the vital part of the body, this lacerated wound which was caused to him; taking into consideration the same the intention and knowledge of the assailant in causing this injury on the vital part amounts the offence attempt to murder under section 307 of IPC. 21.6 Since on behalf of the State the conviction of the appellant which was held by the learned trial court for the offence under section 324 of IPC, we cannot convict the appellant for the offence under section 307 of IPC. The only option before us is to see the legality and propriety of the conviction of the appellant under section 324 of IPC by the trial court. The only option before us is to see the legality and propriety of the conviction of the appellant under section 324 of IPC by the trial court. 21.7 From the bare provision of section 320 of IPC wherein eight kind of injuries are designated as grievous, this injury does not come under the eight categories of designated grievous hurt and there being no opinion of the doctor who examined the injury of injured Kanahailal Hembram. All the injuries caused to the injured Kanahailal Hembram by the assailant shall come under the purview of the hurt as defined under section 319 of IPC. As such the conviction of the appellant by the learned trial court for the offence under section 324 of IPC does not bear any infirmity. 22. So far as the sentence which has been awarded by the learned trial court to the appellant Sunil Hambram @ Sunil Hembram for the offence under section 324 of IPC i.e. the maximum sentence 3 years as provided under section 324 of IPC. The learned trial court while imposing the maximum sentence has not recorded any reasons inflicting the maximum sentence to the appellant convict, therefore, same also needs interference. 22.1 The learned counsel for the appellant Sunil Hambram @ Sunil Hembram has submitted that the appellant has served out the sentence of 9 months and has faced the sessions trial and thereafter facing this appeal for last 19 years. His sentence may be reduced from 3 years to the sentence which the appellant has served out. 22.2 Learned APP opposed this contention vehemently made by the learned counsel for the appellant. 22.3 Taking into consideration the submission made by the learned counsel for the parties, we are of the considered view that the occurrence being of the year October, 2005 and he has faced the trial till 17.10.2012 and thereafter, he preferred Criminal Appeal (SJ) No. 78 of 2013 and has been facing the appeal continuously more than 10 years. 22.4 Sunil Hambram @ Sunil Hembram was arrested on 23.10.2005 and he has served out the sentence about 9 months. The appellant Sunil Hambram @ Sunil Hembram was granted bail by this Court in B.A. No. 3445 of 2006 on 04.07.2006. 23. 22.4 Sunil Hambram @ Sunil Hembram was arrested on 23.10.2005 and he has served out the sentence about 9 months. The appellant Sunil Hambram @ Sunil Hembram was granted bail by this Court in B.A. No. 3445 of 2006 on 04.07.2006. 23. In Criminal Appeal (DB) No. 168 of 2015, learned counsel for the appellant Narayan Hembram @ Naran Hembram has submitted that the learned trial court has convicted the appellant for the offence under section 302 of IPC; while the occurrence took place on the issue when the informant alongwith uncle and grand-father reached to the house of Sunil Hambram @ Sunil Hembram wherein Sunil Hambram @ Sunil Hembram and the present appellant Narayan Hembram @ Naran Hembram, Anil Hembram, Jeebu Hembram are alleged to be present. Since they were asked in regard to the whereabout of the wood of the cut dry trees alleged to have been carried away from the house of the informant this provoked all the persons including the appellant and assaulted. There was no intention or premeditation on part of the appellant to cause murder of Parav Hembram. Alternatively it is also argued that it may be the case under the exception-4 where the murder was committed without any pre-meditation in a sudden fight in hit of passion upon a sudden quarrel without the offender having taken undue advantage. 24. The learned APP opposed this contention vehemently and contended that the injury which was inflicted by the weapon axe was sufficient in its ordinary course of nature to cause death as such the case would come under section 302 of IPC. 25. From the evidence adduced on behalf of the prosecution it is found when the informant alongwith his uncle Supai Hembram and grandfather Parav Hembram went to the house of Sunil Hambram @ Sunil Hembram wherein Sunil alongwith other accused including the present appellant Narayan Hembram @ Naran Hembram were present and they asked them in regard to the whereabouts of the cut dry tree of the informant's uncle Supai Hembram. This contention and act of the informant, his uncle and grand-father was opposed by the appellant and other accused present thereon. This contention and act of the informant, his uncle and grand-father was opposed by the appellant and other accused present thereon. In hit of passion the appellant and other co-accused began to assault on the informant and his grand-father and there is nothing on record from the evidence that the appellant was having any pre-meditation to commit murder of Parav Hembram and in heat of the passion the appellant Narayan Hembram had given the blow with the axe to Parav Hembram resulting his death without any pre-meditation assaulted in heat of passion in the sudden quarrel. As such from the evidence on record the charge against the appellant Narayan Hembram is made out under the Exception-4 of section 300 of IPC punishable under section 304 of IPC. As such the conviction of the appellant deserved to be converted for the offence under section 304 of IPC murder culpable of homicide not amounting of murder. 25.1 The Hon'ble Apex Court held in “Rajendra Singh v. State of Bihar” (2000) 4 SCC 298 held that the necessary ingredient for the Exception-IV to the Section 300 are: (a) sudden fight, (b) absence of premeditation (c) no undue advantage or cruelty but the occasion must be sudden and not a cloak for pre-existing malice. 25.2 In the present appeal from the prosecution evidence it is found that it was the informant and his uncle and grand-father who had gone to the house of the appellant and who asking the whereabout of the wood of the cut dry tree the sudden fight arose. The appellant without taking undue advantage or without any cruelty assaulted. The occasion of the fight was sudden as the informant and his uncle and grand-father has reached to the house of the appellant suddenly. Accordingly, the conviction and sentence of the appellant Narayan Hembram for the charge under section 302 of IPC needs interference and the appellant is being convicted for the charge under section 304 Part II of IPC. 26. Accordingly Criminal Appeal (DB) No. 168 of 2015 is partly allowed. The conviction of the appellant Narayan Hembram for the charge under section 302 of IPC is set aside and the same is modified by convicting the appellant for the charge under section 304 Part-II of IPC and is sentenced with imprisonment for 10 years and also a fine of Rs.5,000/-. The conviction of the appellant Narayan Hembram for the charge under section 302 of IPC is set aside and the same is modified by convicting the appellant for the charge under section 304 Part-II of IPC and is sentenced with imprisonment for 10 years and also a fine of Rs.5,000/-. In default of payment of fine, the additional imprisonment of two months shall have to undergo. 27. Criminal Appeal (SJ) No. 78 of 2013 is dismissed against the conviction for the offence under section 324 of IPC but is partly allowed modifying the sentence as the period of imprisonment undergone by the appellant Sunil Hambram @ Sunil Hembram. His bail bonds are hereby cancelled and the sureties stands discharged. 28. Let the record of learned trial court be sent back alongwith copy of the judgment for necessary compliance.