JUDGMENT : Per Ananda Sen, J. These appeals are directed against the judgment of conviction dated 5th February, 2016 and order of sentence dated 10th February, 2016 passed by Additional Judicial Commissioner-XII, Ranchi in Sessions Trial No. 20 of 2013, arising out of Chutia Police Station Case No.233 of 2013 corresponding to G.R. No.6186 of 2012, whereby and whereunder, the appellants have been convicted for offences under Sections 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and fine of Rs.10,000/- for committing the offence punishable under Sections 302 of the Indian Penal Code and in default of payment of fine, both the appellants were further sentenced to undergo rigorous imprisonment for six months. 2. Learned counsel appearing on behalf of the appellants-convicts submitted that there is no material and evidence to convict these appellants. It is their contention that there is no eye witness to the occurrence and P.W.3 and P.W.12, who claim themselves to be the eye witness, are not trustworthy. Further, it has come in evidence that while these two witnesses reached the place of occurrence, the appellants fled away by jumping boundary wall of the railway station, thus, it cannot be said that these two witnesses are eye witnesses to the occurrence. All the other witnesses are hearsay witnesses, who were informed over telephone about the occurrence. They further contended that in his cross examination, P.W.3 had stated that persons gathered there had seen the occurrence, but no other witness has been examined by the prosecution who had witnessed the occurrence. They contended that the P.W.3 and P.W.12 who claim to be the eye witness to the occurrence, have not narrated the manner of assault. They also argued that though the place of occurrence is densely populated area, yet surprisingly, there is no eye witness, who could have seen the appellants assaulting the deceased. They contended that the prosecution has miserably failed to prove its case beyond all reasonable doubts 3. Learned counsel appearing for the State submitted that P.W. 3 and P.W.12 are eye witness to the occurrence and they have narrated the manner of occurrence without leaving any space for doubt. The defence has not brought any material to doubt the credibility of the eye witnesses. They further contended that the motive has also been proved by the prosecution through the evidence of prosecution witnesses. The defence has not brought any material to doubt the credibility of the eye witnesses. They further contended that the motive has also been proved by the prosecution through the evidence of prosecution witnesses. Further the assault as narrated by the ocular evidence is corroborated by the medical evidence. They further contended that the prosecution has proved the charges against the appellants beyond all reasonable doubts, thus the appellants have rightly been convicted and sentenced by the Trial Court. 4. The appellants have been charged and convicted under Sections 302/34 of the Indian Penal Code. The prosecution case is based upon the fardbeyan dated 14.11.2012 at 21.15 Hrs. of the informant-Munar Ram, wherein it has been narrated that on that day at about 04.00 p.m. in the evening he opened his Khaini (tobacco) shop. At about 07.30 p.m. evening his uncle Balchand Ram, by parking his rickshaw on a side, came to his shop to take tobaco. At the same time, the appellants Santosh Ram and Shivlal Ram came there and started abusing and scuffling with the deceased Balchand Ram. When he tried to intervene, Santosh Ram also started scuffling with him to which the deceased intervened and thereafter Shivlal also started scuffling with them. In the meantime, appellant Santosh Ram took a Chamkatni Chura (a tool used for leather cutting) and stabbed the deceased twice in his stomach and also stabbed on his chest. Due to severe injury and bleeding, the deceased fell down. After assault, both the appellants fled from there. The informant along with others took the deceased by rickshaw to Guru Nanak Hospital, where the doctors declared him dead. The informant further narrated the motive for killing to be an occurrence of scuffle and free fight which took place during last Savan month in Village Rampur Ami where the appellants had hurled dire consequences saying that they will see him in Ranchi as many persons have protected him here in the village. 5. On the basis of the aforesaid fardbeyan of the informant, Chutia P.S. Case No. 233 of 2012 was registered as against the appellants for the offence under Sections 302/34 of the Indian Penal Code. Police, after completion of investigation, submitted charge sheet against the appellants and, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. 6. Police, after completion of investigation, submitted charge sheet against the appellants and, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. 6. To prove the prosecution case, the prosecution had produced sixteen witnesses, who are as follows; P.W.1 Munna Ram Kesari P.W.2 Sandip Kumar P.W.3 Chandeshar Rai P.W.4 Uma Devi P.W.5 Chandrika Ram P.W.6 Ram Sagar Ram P.W.7 Shiv Shankar Ram P.W.8 Ashok Ram P.W.9 Mahangu Rai P.W.10 Ram Jivan Rai @ Bhutan Rai P.W.11 Krishna Ram P.W.12 Munar Ram P.W.13 Sujit Kumar Thakur P.W.14 Dr. Vinay Kumar P.W.15 Budhdeo Kharia P.W.16 Dr. H.K. Sinha The prosecution also produced following documents to substantiate its case, which were marked exhibits:- Ext.1 Signature of Chandrika Ram on seizure list dated 15.11.12 at 08.15 p.m. Ext.1/1 Seizure list dated 15.11.2012 at 08.15 p.m. Ext. 1/2 Seizure list dated 15.11.2012 at 14.15 p.m. Ext. 2 Signature of Munar Ram on Fardbeyan dated 14.11.2012 Ext. 2/1 Fardbeyan of informant Munar Ram Ext.2/2 Endorsement of A.K. Singh, O/c Chutia P.S. on Fardbeyan Ext. 3 Postmortem Report of deceased Balchand Ram Ext.4 Inquest Report dated 15.11.2012 at 05.55 p.m. Ext.5 Signature of Anil Kumar Singh, Officer-in-charge of Chutia P.S. on Formal FIR Ext.6 Biological Report of SFSL Letter No.1225/12 dated 10.09.2013 Ext.6/1 Serological Report of SFSL dated 20.12.2013 Ext.6/2 Forwarding letter No.1559(Go) dated 28.12.2013 7. Out of the sixteen witnesses examined on behalf of the prosecution, P.W.1 Munna Ram Kesari, P.W.2 Sandip Kumar, P.W.4 Uma Devi, P.W.5 Chandrika Ram, P.W.6 Ram Sagar Ram, P.W.7 Shiv Shankar Ram, P.W.8 Ashok Ram, P.W.11 Krishna Ram are all hearsay witnesses, who all went to Ranchi from their respective places after hearing about the occurrence. P.W.5 has proved his signature on the seizure list, which was marked as Ext.1. P.W.6 Ram Sagar Ram has proved the signature of the informant P.W.12 on the fardbeyan, which was marked as Ext.2. P.W.9 Mahangu Rai, P.W.10 Ram Jivan Rai @ Bhutan Rai and P.W.13 Sujit Kumar Thakur were declared hostile. P.W.3 Chandeshar Rai in his evidence has stated that the occurrence is of 14.11.2012 between 07.00 to 08.00 p.m. night. He was at his shop situated near Lohardaga Gate, Station Road. P.W.9 Mahangu Rai, P.W.10 Ram Jivan Rai @ Bhutan Rai and P.W.13 Sujit Kumar Thakur were declared hostile. P.W.3 Chandeshar Rai in his evidence has stated that the occurrence is of 14.11.2012 between 07.00 to 08.00 p.m. night. He was at his shop situated near Lohardaga Gate, Station Road. He saw that Shivlal Ram was holding the deceased Balchand Ram and appellant Santosh Ram with a Chamarkatni (a tool used for cutting leather) stabbed the deceased twice on the left side of his stomach and once on the right side of his chest due to which the deceased fell down. Both the appellants fled by scaling the wall. He took the deceased to Guru Nanak Hospital where the doctors declared him dead. This witness identified the appellants who were present in Court. In his cross examination, this witness has stated that the police had recorded his statement one hour after the occurrence. Time of the occurrence was at about 07.00 – 08.00 p.m. He sells litti. He was at a distance of about 25 yards from the place of occurrence and at that time except him there were nobody at his shop. There remains other persons also at his shop. At a distance of 25 yards there are 5-7 shops. All shops sell eggs and litti. He expressed his inability to say whether all the shops were crowded or not. All shops are of Mahangu Ram, Ramjivan Ram, Durga Ram, Gupta Ji and Thakur. This is Railway Station Road. On the other side of the road Hotel Kwality is there. At that time there was not much crowd but people were commuting. The persons whom he has named, all are in his relation. His home town is Balua in Chapra District. Crowd assembled at the place of occurrence. He had seen injuries on stomach and chest. Blood was there on the ground. He took him to the hospital. He along with Munar Ram had taken him to the hospital on a rickshaw. He is unable to tell the names of persons in crowd. Whether they were outsiders or local he could not tell. The deceased, whom he took to the hospital was not in a position to speak. At the hospital, doctors declared him dead. Out of humanity, he took him to the hospital. Family of the deceased reside beside their home. Residence of both are at the same place. Whether they were outsiders or local he could not tell. The deceased, whom he took to the hospital was not in a position to speak. At the hospital, doctors declared him dead. Out of humanity, he took him to the hospital. Family of the deceased reside beside their home. Residence of both are at the same place. At the time when they took the deceased to the hospital, no body from his family was present as his family was not here. He has no animosity. He denied the suggestion that he does not know anything about the occurrence or on being asked by the family of deceased Balchand Ram he has deposed. P.W.12 Munar Ram is the informant of this case. He stated that the occurrence took place on 14 November, 2012. He was at his tobacco shop at that time. Deceased Balchand Ram had come to his shop to take tobacco at about 06.30 p.m. evening. He had given tobacco to him and was gossiping with him. In the meantime, Santosh Ram started abusing and wrangling with the deceased. He forbade him and deceased also forbade him. When he tried to intervene, Santosh also started scuffling with him. In the meantime Shivlal also came and started scuffling. Santosh Ram took out Chamarkatni (a tool used for cutting leather) from his right pocket and Shivlal Ram was holding the deceased. Santosh Ram stabbed with Chamarkatni twice on the stomach of the deceased and once on his chest due to which the deceased fell down. Thereafter both the appellants fled. This witness further stated that they took the deceased on a rickshaw to Guru Nanak Hospital where the doctors declared him dead. The entire occurrence took place in his presence. He identified his fardbeyan and signature on it. He also proved the signature of Ram Sagar Ram on the fardbeyan, which was marked Exhibit 2/1. He identified the appellants who were present in Court. He stated that there was scuffle between the parties at the village on the issue of taking water from the tap in Savan month where they were intervened and at that time itself appellants had threatened the deceased to see him in Ranchi as to who will save him. In cross examination, he stated that he is illiterate, however able to write his name and address. In cross examination, he stated that he is illiterate, however able to write his name and address. He has a tobacco shop for last three years and there is no license of it. He operates the shop on footpath. Deceased is his uncle. His age at the time of occurrence was between 40-45 years. Place of occurrence is on the road in front of his shop. Within half an hour entire game was over. In the meantime he tried to forbade. No body came to take tobacco as scuffle was going on in front of the shop. Deceased Balchand had come to the shop alone. There are litti shops besides his shop belonging to Mahangu Ram, Butan Ram and Durga Ram etc. All the shops are in one line. He stated that Kwality Inn Hotel is on the northern side of place of occurrence, on the southern side is railway station, again he says that railway station is in the east and on the western side is the road to over-bridge. People were commuting at the place of occurrence at the time of occurrence. Road was little crowded. It was festive time of Deepawali. Occurrence was of 13th November or 14th November. He had not raised alarm and at that time no one came to rescue. He had taken the deceased on rickshaw with the help of public to Guru Nanak Hospital. His clothes were smeared with blood. He had not shown his shirt to the Sub Inspector. Deceased was wearing Cream colour shirt and light black pant. He was also wearing vest. All three were smeared with blood. Shirt and vest were torn due to assault. He expressed ignorance regarding whereabouts of the blood smeared clothes of deceased. After recording his statement, police never came to him. At the time of occurrence, no staff of Hotel Kwality Inn came. There remains a guard at the gate of the hotel. Shivlal and Santosh are also his relatives. He along with his father and the deceased only went to the hospital on the rickshaw. The moment they went to the hospital, it was told that deceased has died. When he had taken to the hospital, police had come. No one except him and his father reached to the hospital at that time. He had given his fardbeyan at Chutia Police Station. Ram Sagar was accompanying him. The moment they went to the hospital, it was told that deceased has died. When he had taken to the hospital, police had come. No one except him and his father reached to the hospital at that time. He had given his fardbeyan at Chutia Police Station. Ram Sagar was accompanying him. Ram Sagar had also come to the hospital whereafter they went to the police station. Ram Sagar had come after about one hour. He further stated that in the FIR also he has mentioned that appellant Shivlal Ram was holding the deceased and had also stated before the police. He was assaulted on his eyes and face and also on his back. He was assaulted by fists and slabs. Santosh Ram had assaulted him. He had not got treatment for his injuries. When he went to Guru Nanak Hospital taking the deceased, thereafter he had not returned to his shop on that day. Deceased was his uncle. He denied the suggestion that he was not present at the place of occurrence and hearing about his injury, he had reached to the place of occurrence. He denied the suggestion that he has given false evidence. He denied the suggestion that his uncle was drunk and he had quarrel with other drunkards who had killed his uncle and he was not knowing his name, therefore, he gave the name of an innocent and falsely implicated. P.W.14 Dr. Vinay Kumar is the medical officer, who had conducted the postmortem on the dead body of the deceased Balchand Ram. He found the following: - General Examination:- Body average built, rigor mortis was present allover the body, abdomen slightly distended, postmortem hypostasis fully developed and fixed, cornea transparent and hazy, upper part of body and clothes are stained with blood, nails are cyanosed. Injury:- Abrasion fresh red in colour. Age of injury:- Less than 06.00 hours from the time of death (i) 3 cm x 2 cm over right cheek upper part adjacent and lateral to the lateral canthus of right eye. (ii) 4 cm x 4 cm over right shoulder top in lateral part. (i) 3 cm x 1 cm x cavity deep upper front of right side of chest overlying the fourth rib. 3 cm lateral to the midline directed obliquely from upward and laterally to the downward and medially cutting underneath. (ii) 4 cm x 4 cm over right shoulder top in lateral part. (i) 3 cm x 1 cm x cavity deep upper front of right side of chest overlying the fourth rib. 3 cm lateral to the midline directed obliquely from upward and laterally to the downward and medially cutting underneath. Third and fourth coastal cartilage then penetrate the under neats right atrium and right lung. (ii) 3.5 cm x ½ cm x soft tissue deep over upper part of left side of front of abdomen in interior axillary line. (iii) 3 cm x 1 cm x cavity deep overlying the left interior superior iliac spine cutting the underneath hip bone. Pericardial cavity and chest cavity is filled with blood and blood clot Internal organs were congested, stomach contained semi digested food in pasty form 100 gm. Opinion:- (i) Above injuries were ante-mortem in nature. (ii) Abrasion were caused by hard and blunt substance whereas stab wounds caused by sharp cutting weapons. (iii) Death is due to combined effect of haemorrhagic shock and asphyxia. Time elapsed since death is 18.00 hours + 06.00 hours from the time of postmortem examination. The postmortem report prepared by him was marked as Ext.3. P.W.15 Buddhdeo Kharia was the investigating officer of this case. He has received the charge of investigation in the light of order of Officer-in-Charge Anil Kumar Singh. He has given description of the place of occurrence with boundaries. He proved the inquest report which was marked Ext.4. He has stated about recording of re-statement of informant as also recording of statement of witnesses Chandrika Ram, Sudhir Kumar, Uma Devi, Munna Ram, Ram Sagar Ram, Mahango Ram, Ram Jivan Ram, Chandreshwar Ram, Sandeep Kumar, Krishna Ram, Shiv Shankar Ram, Ashok Ram and Sujit Kumar. He also stated to have recorded the confessional statement of Santosh Ram and proved the seizure-cum-search list regarding Cham Kati Chhuri and a blue colour shirt, which was marked as Ext.1/1. He also proved the seizure list regarding seizure of cream colour shirt, white colour ganji and black colour full pant drenched with blood of deceased, which was marked as Ext. 1/2. He had sent the seized articles to State Forensic Lab for examination and had filed chargesheet No.221/12 dated 12.12.2012. He also proved the seizure list regarding seizure of cream colour shirt, white colour ganji and black colour full pant drenched with blood of deceased, which was marked as Ext. 1/2. He had sent the seized articles to State Forensic Lab for examination and had filed chargesheet No.221/12 dated 12.12.2012. He also identified the Fardbeyan of the informant in his pen and signature as also the signature of Ram Sagar Ram on it, which was marked as Ext. 2/1. He also proved the endorsement (registration of case) which was marked as Ext. 2/2. He also identified the signature of Officer-in-Charge on formal FIR which was marked as Ext. 5. P.W.16 Dr. H.K. Sinha was posted as Assistant Director at F.S.L., Ranchi. He gave the following description of articles, result and report:- Description of articles:- Mark-A The iron made leather cutter said to be Cham Kuti having reddish brown stained over small area. Mark B The dirty cream colourful full shirt having reddish brown stained over large area. Mark C White sando ganji reddish brown stained practically all over. Mark D Black full pant having reddish brown stained on all over. Result:- (i) Blood was detected on the exhibit as noted below:- (a) Exhibit Mark-A over small area. (b) Exhibit Mark-B over large area (c) Exhibit Mark-C all over (d) Exhibit Mark-D over large area. (ii) The biological report prepared, typed and signed by In-charge Director Mr. R.S. Singh was marked as Exhibit 6. Serological Report:- As a result of serological examination, exhibit Mark-A, Mark-B, Mark-C and Mark-D are from human sources of origin and of AB blood group. He proved the counter signature of Mr. R.S. Singh, In-charge Director, FSL, Ranchi which was marked as Ext. 6/1. He also proved the letter vide Memo No.1559/Go dated 28.12.2013 prepared by in-charge Director R.S. Singh, which was marked as Ext.6/2. 8. After closure of prosecution evidence, the statement of the appellants were recorded under Section 313 Cr.P.C in which they claimed to be innocent. 9. One witness was examined on behalf of the defence, namely, Manoj Ram as D.W.1, who stated that Santosh Ram is his son-in-law and Shiv Lal Ram is his father. They all reside together in Amrawati Colony since last 5 years. Appellant Santosh Ram runs a Litty Chokha shop and he was sitting at the shop of Shiv Lal Ram and till then no occurrence had taken place. They all reside together in Amrawati Colony since last 5 years. Appellant Santosh Ram runs a Litty Chokha shop and he was sitting at the shop of Shiv Lal Ram and till then no occurrence had taken place. He stated that Balchand Ram was taking liquor, in the meanwhile, there was screaming but he could not see who assaulted whom. He stated that the date of incident was 14th. During cross examination, he stated that he has no knowledge as to how and when the occurrence took place. 10. The trial court after hearing the arguments and appreciating the evidences on record, by a judgment of conviction dated 5th February, 2016 and order of sentence dated 10th February, 2016 passed in Sessions Trial No. 20 of 2013, arising out of Chutia Police Station Case No.233 of 2013 corresponding to G.R. No.6186 of 2012, convicted the appellants for offences under Sections 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and fine of Rs.10,000/- for committing the offence punishable under Sections 302 of the Indian Penal Code and in default of payment of fine, both the appellants were further sentenced to undergo rigorous imprisonment for six months. 11. After hearing the learned counsel for the parties and after going through the evidences of this case, we find that there are two eye witnesses to the occurrence. P.W.3 Chandeshar Rai is one of the eye witnesses, who runs a shop at Lohardaga Gate. He was at his shop which is 25 yards from the place of occurrence and he has narrated about the manner of assault as he had witnessed. P.W.12 Munar Ram is the informant of this case. He runs a tobacco shop where the entire incident had occurred. He has given detail description of the manner of assault as was witnessed by him. He has also stated the number of blows given by the appellants by using Chamarkatni (a tool used for cutting leather) as also the parts of the body where stab blows were given by the appellant. The medical evidence also describes the nature of injuries and the cause of death, which fortifies the evidence of the ocular witnesses P.W.3 and P.W.12. 12. P.W.14 is the doctor, who had conducted the Postmortem. He found three stab wounds on the body of the deceased. The medical evidence also describes the nature of injuries and the cause of death, which fortifies the evidence of the ocular witnesses P.W.3 and P.W.12. 12. P.W.14 is the doctor, who had conducted the Postmortem. He found three stab wounds on the body of the deceased. These stab wounds are on the chest near the 4th rib, left side of the abdomen and one near the spine and hip bone. The deceased died because of the hemorrhage, shock and asphyxia. The evidence of this witness clearly suggests that the death is homicidal. The weapon, which was used, is a leather cutter, which is a sharp instrument. The blood in the said leather cutter was found to be human blood having Blood Group ‘AB’. The wearing apparels of the deceased were also sent to the Forensic Science Laboratory. There were blood stains in his shirt, inner vest and full pant. The blood stains found in the wearing apparels matched with that of the blood found in the weapon. The Scientific Report also suggests that the deceased was assaulted with Chamarkatni. Thus, the prosecution has been able to prove the murder weapon also. 13. There are only two eye witnesses in this case, i.e., P.W.3 Chandeshar Rai and P.W.12 Munar Ram, who are independent witnesses. On analysing the statements of P.W.3 and P.W.12, it would be clear that the deceased had purchased tobacco from the shop of P.W.12 and was talking with him. In the meantime, Santosh Ram came and started abusing the deceased and started scuffling with him. When this witness forbade him and tried to intervene, Santosh Ram started scuffling with him also. In the meantime, appellant Shivlal came there and also joined appellant Santosh. Then Santosh Ram took out Chamarkatni from right pocket and stabbed the deceased twice on the stomach and once on the chest. The fact that the appellant Santosh stabbed twice on the stomach and once in the chest is also the consistent statement of P.W.3 who is also an eye witness to the occurrence. Statement of these two witnesses, so far as the nature of the injury and the part of the body, where it was inflicted, matches with the medical evidence. 14. Further, from their evidence we could gather that it is Santosh Ram, who started abusing and scuffling with the deceased. Deceased was simply gossiping with P.W.12 Munar Ram. He was unarmed also. 14. Further, from their evidence we could gather that it is Santosh Ram, who started abusing and scuffling with the deceased. Deceased was simply gossiping with P.W.12 Munar Ram. He was unarmed also. Deceased was neither the aggressor nor instigated Santosh Ram, rather from the evidence of P.W.12, we could get that he tried to forbade Santosh Ram. The appellant Shivlal Ram later came and also started scuffling and caught hold of the deceased, when suddenly Santosh Ram took out sharp cutting weapon, which is used for cutting leather and stabbed on the stomach and chest of the deceased. The fact that Santosh Ram gave the fatal blow is established. 15. Section 300 of the Indian Penal Code defines murder. There are five exceptions to Section 300 of the Indian Penal Code. A culpable homicide is not murder if the offender is deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave provocation or causes the death of any other person by mistake or accident. Where an offender exercises in good faith the right of private defence of person or property and exercises that right without premeditation and without any intention of doing more harm then necessary, then also the act is not murder. Exception 3 relates acts of public servant, which is not applicable in this case. Exception 4 is applied in the case where the act 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. Exception 5 is in respect of death where a person above the age of eighteen years suffers death or takes the risk of death with his own consent. 16. In this case, defence has argued that the act of Santosh Ram would fall within Exception 4 to Section 300 of the Indian Penal Code. Learned counsel for the appellants also relied on a decision of the Hon’ble Supreme Court in the case of A. Maharaja versus State of Tamil Nadu reported in (2008) 17 SCC 173 to substantiate that the case would fall within Exception 4 to Section 300 of the Indian Penal Code, as the act was committed in the heat of passion. Learned counsel for the appellants also relied on a decision of the Hon’ble Supreme Court in the case of A. Maharaja versus State of Tamil Nadu reported in (2008) 17 SCC 173 to substantiate that the case would fall within Exception 4 to Section 300 of the Indian Penal Code, as the act was committed in the heat of passion. For better appreciation, it is necessary to quote Exception 4 to Section 300 of the Indian Penal Code, which reads as under: - 300. Murder … 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. 17. The conditions for application of the aforesaid exception is that the act should be committed:- (i) without premeditation in a sudden fight; (ii) in heat of passion upon a sudden quarrel; (iii) Offender has not taken undue advantage; (iv) Offender has not acted in a cruel or unusual manner. All these conditions should simultaneously exist in the same transaction, then only this exception can be applied. From the explanation of the exception, it is clear that it is immaterial that which party offers the provocation or commits the first assault. 18. If the facts of the present case are applied to the aforesaid proposition of Exception 4, we find that there was no provocation at all from the side of the deceased. The deceased was gossiping with P.W.12 when suddenly the appellant Santosh Ram came and started scuffling with him. They all forbade him, but he continued. Then Shivlal came and he also started taking part in the act of his son and caught hold of the deceased, when Santosh took out the weapon and stabbed the deceased thrice. The condition of “heat of passion” may be infavour of the appellant, but the fight was one sided, where the deceased did not take part nor even started the same, nor instigated the other appellant. It is the offender, who had taken undue advantage and started abusing and scuffling with the deceased. Shivlal came and caught hold of the deceased when Santosh Ram stabbed the deceased with Chamarkatni. It is the offender, who had taken undue advantage and started abusing and scuffling with the deceased. Shivlal came and caught hold of the deceased when Santosh Ram stabbed the deceased with Chamarkatni. The offender Santosh Ram acted in an unusual and cruel manner. Thus, we find that the requirements, which are necessary to establish the Exception 4 of Section 300 of the Indian Penal Code is missing in this case. When the requirements are missing, Exception 4 cannot be applied and the case will fall within the ambit of Section 300 of the Indian Penal Code, punishable under Section 302 of the Indian Penal Code. Further, after going through the judgment of the Hon’ble Supreme Court in the case of A. Maharaja (supra) as cited by the appellant, we find that the facts of the said case are different than the instant case. In that case, the deceased was cutting trees with sharp cutting weapon and when opposed by the accused an altercation took place when the accused snatched the weapon from the deceased and cut the neck of the deceased. The facts of this case is absolutely different as the weapon was with the appellant and deceased did not indulge in any act. 19. It is a case of direct evidence against the appellant Santosh Ram of committing the offence of assault causing murder. So far as Shivlal Ram is concerned, we find that there is no direct allegation against him of assaulting the deceased and committing the murder. His overt act is only scuffling and catching hold of the deceased. There is nothing in the evidence to suggest that he had acted in furtherance of common intention to commit murder. Thus, he could not have been convicted under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code. 20. The prosecution has narrated the motive of the offence as there was dispute amongst the deceased and the appellant. In this case there are eye witnesses to the said occurrence and the evidence of the eye witnesses is trustworthy. When there are eye witnesses to murder, establishment of motive loses force, as has been held by the Hon’ble Supreme Court in the case of Madan versus State of Uttar Pradesh reported in 2023 SCC OnLine SC 1473. 22. Thus, we hold that the appellant Santosh Ram [appellant in Cr. When there are eye witnesses to murder, establishment of motive loses force, as has been held by the Hon’ble Supreme Court in the case of Madan versus State of Uttar Pradesh reported in 2023 SCC OnLine SC 1473. 22. Thus, we hold that the appellant Santosh Ram [appellant in Cr. Appeal (DB) No. 317 of 2016 has been rightly convicted under Section 302 of the Indian Penal Code. Thus, we uphold the judgment of conviction and order of sentence passed in Sessions Trial 20 of 2013 qua the appellant Santosh Ram. Cr. Appeal (DB) No.317 of 2016 is, accordingly, dismissed. So far as appellant Shivlal Ram [appellant in Cr. Appeal (DB) No.163 of 2016] is concerned, in absence of any material to implicate him in this case for the offence under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code as held earlier, he is acquitted. Cr. Appeal (DB) No.163 of 2016 is, accordingly, allowed. Appellant Shivlal Ram [appellant in Cr. Appeal (DB) No.163 of 2016], who is already on bail, is hereby discharged from the liabilities of the bail bonds as also the bailers. Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.