JUDGMENT : RAJEEV RANJAN PRASAD, J. 1. Heard learned counsel for the appellant, learned Additional Public Prosecutor for the State and learned Senior Counsel for the respondent nos. 2 to 5. 2. The present appeal has been preferred being aggrieved by the judgment dated 28.02.2023 and the order dated 02.03.2023 (hereinafter referred to as the ‘impugned judgment and order’ respectively) passed by learned Additional Sessions Judge-VIII, Madhubani (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 105 of 2017 arising out of Pandaul P.S. Case No. 212 of 2016 registered under Sections 147, 148, 149, 323, 324, 307, 354, 427, 504, 506 of the Indian Penal Code (in short ‘IPC’). Later on, Section 302 IPC was also added. The grievance of the appellant is that the learned trial judge has acquitted respondent nos. 2 to 5 of the grave charges and they have been convicted and sentenced for lesser offences. 3. It is evident from the impugned judgment that the learned trial court has held Chandra Bhushan Jha (Accused No. 1) liable for causing the offence of culpable homicide not amounting to murder which comes under Exception 4 of Section 300 IPC. Chandra Bhushan Jha (Accused No. 1) has been held guilty under Section 304 Part II IPC. So far as respondent nos. 3, 4 and 5 are concerned, the learned trial judge has been pleased to hold them guilty of the charge under Section 323 IPC and they have been convicted for the same. It has been held that the prosecution has failed to prove offences under Sections 147, 148, 149, 324, 307, 354, 427, 504 and 506 IPC beyond all shadows of reasonable doubts. The accused no. 1 who is respondent no. 2 in the present appeal has been sentenced to undergo rigorous imprisonment of six and half years for offence under Section 304 Part II IPC and a fine of Rs. 5,000/- payable to the legal heirs of the deceased and in case, there is a default in payment of fine, the convict has to undergo a further imprisonment for three months. He has also been sentenced to undergo simple imprisonment for three months for offence under Section 323 IPC. Accused no. 2 Sahindra Jha @ Surendra Jha, Accused no. 3 Prakash Thakur and Accused no. He has also been sentenced to undergo simple imprisonment for three months for offence under Section 323 IPC. Accused no. 2 Sahindra Jha @ Surendra Jha, Accused no. 3 Prakash Thakur and Accused no. 4 Mukesh Thakur have been sentenced to undergo three months simple imprisonment for the offence under Section 323 IPC. The learned trial court did not pass any order to pay compensation but directed to send a copy of the judgment to the District Legal Services Authority, Madhubani for compensation. Submissions on behalf of the Appellant 4. In appeal before this Court, learned counsel for the appellant, though, initiated his arguments as against all the accused who have been impleaded as respondent nos. 2 to 5 but towards the end of his submissions, learned counsel for the appellant has confined his arguments against Chandra Bhushan Jha (Respondent No. 2). It is his submission that there are clinching evidences available on the record to record a finding that Chandra Bhushan Jha has committed murder of Upendra Jha (the deceased), therefore, he would be liable to be convicted under Section 302 IPC. Submissions on behalf of the Respondent No.2 5. Since the appeal is to be considered as regards respondent no. 2 alone, Mr. V.N.P. Sinha, learned Senior Counsel representing the private respondents has also confined his submissions in defence of respondent no. 2 alone. It is his submission that from the materials available on the record, it would be evident that both the parties are co-sharers, they had a land dispute and as per the prosecution case, the accused persons had been damaging the hut made on the disputed land, for this purpose, the accused persons had gone to the place of occurrence with the traditional equipment such as axe, spade and lathi. It is submitted that the occurrence took place in spur of the moment, there was no preparation to kill Upendra Jha and the prosecution has miserably failed to prove that there was any intention on the part of the accused no. 1/respondent no. 2 to commit murder of Upendra Jha. It is submitted that in absence of any proof of intention to kill, the learned trial court has rightly concluded that the present case would fall under Exception 4 of Section 300 IPC. Facts of the Case 6. 1/respondent no. 2 to commit murder of Upendra Jha. It is submitted that in absence of any proof of intention to kill, the learned trial court has rightly concluded that the present case would fall under Exception 4 of Section 300 IPC. Facts of the Case 6. Before we take a final view of the matter on the rival contentions, it would be appropriate to take note of the prosecution case hereunder: The prosecution case is based on the fardbeyan of Pankaj Kumar Jha (PW-5) who claims that on 12.10.2016 at about 01:00P.M., he had gone to Futani Chowk to take ‘paan’, at this moment, he received an information on his mobile that his house is being damaged by Chandra Bhushan Jha, Sahindra Jha @ Surendra Jha and some other persons who are not from the village, by axe and spade. On this information, he reached his house and found that his co-sharers (1) Chandra Bhushan Jha, (2) Sahindra Jha @ Surendra Jha, (3) Prakash Thakur and (4) Mukesh Thakur were having spade and axe in their hands and they were damaging his house. There were other four persons with them whom the informant did not identify. It is alleged that when Upendra Jha, the younger grandfather of the informant intervened and asked them not to do so, all the accused persons with an intention to kill, Chandra Bhushan Jha armed with an axe assaulted him on his head as a result whereof, he was seriously injured and fell down. The informant further alleged that he and other family members of his family came to save him, then he was assaulted by Chandra Bhushan Jha on his chest, left leg and on his neck and badly injured him by axe. All others assaulted by lathi and danda and injured him and they damaged his house. He has further alleged that the villagers and people from the society intervened to save, as a result whereof villagers were also injured. The informant named one Raman Ji Choudhary of Zila Parishad who was allegedly injured in the said occurrence. The informant has admitted in his fardbeyan that the cause of occurrence is a land dispute. It appears from the fardbeyan of Pankaj Kumar Jha (PW-5) that it was recorded by S.I. Mahadeo Paswan (not examined) of Pandaul P.S. on 12.10.2016 at Primary Health Centre, Pandaul at 18:00 Hours. 7. The informant has admitted in his fardbeyan that the cause of occurrence is a land dispute. It appears from the fardbeyan of Pankaj Kumar Jha (PW-5) that it was recorded by S.I. Mahadeo Paswan (not examined) of Pandaul P.S. on 12.10.2016 at Primary Health Centre, Pandaul at 18:00 Hours. 7. On the basis of this fardbeyan, Pandaul P.S. Case No. 212 of 2016 dated 12.10.2016 was registered under Sections 147, 148, 149, 323, 324, 307, 354, 427, 504, 506 IPC. 8. In course of treatment, the injured Upendra Jha was referred to Patna Medical College Hospital, Patna (in short ‘PMCH’) where he died on 17.10.2016 at 08:00 A.M. whereafter Section 302 IPC was also added. His wife Meera Devi (PW-3) gave her fardbeyan to S.I., Devendra Kumar Singh at the outpost in premises of the PMCH, Patna on 17.10.2016 at 13:25 Hours. This fardbeyan of Meera Devi was forwarded to SHO, Pandaul. This fardbeyan has been taken on the record and in course of trial, the signature of Meera Devi (PW-3) has been marked Exhibit-1 whereas the signature of a witness Dhruv Kumar Jha (not examined) present on the said fardbeyan has been marked as Exhibit-1/A. 9. After investigation, police submitted a chargesheet for the offences under Sections 147, 148, 149, 323, 324, 307, 302, 354, 427, 504 and 506 IPC. Cognizance was taken of those offences and upon finding that the offences were triable by Court of Sessions, the records were committed to the Court of Sessions where the accused persons were explained the charges which they denied and claimed to be tried. 10. In course of trial, the prosecution has examined as many as eight witness and exhibited some documentary evidences. The defence has also examined one witness and produced documentary evidence. The name of the prosecution witnesses, defence witnesses and the documentary evidences marked exhibits on behalf of the prosecution and the defence are mentioned hereunder for a ready reference:- List of Prosecution Witnesses PW-1 Digambar Jha PW-2 Govind Jha PW-3 Meera Devi PW-4 Sudhira Devi PW-5 Pankaj Kumar Jha PW-6 Dr. Mithilesh Kumar Mishra PW-7 Dr. The name of the prosecution witnesses, defence witnesses and the documentary evidences marked exhibits on behalf of the prosecution and the defence are mentioned hereunder for a ready reference:- List of Prosecution Witnesses PW-1 Digambar Jha PW-2 Govind Jha PW-3 Meera Devi PW-4 Sudhira Devi PW-5 Pankaj Kumar Jha PW-6 Dr. Mithilesh Kumar Mishra PW-7 Dr. Arun Kumar Singh PW-8 Pramod Prasad, S.I. List of Exhibits on behalf of the Prosecution:- Exhibit 1 Signature of Meera Devi on fardbeyan at P.M.C.H., Patna Exhibit 1/A Signature of Dhruv Kumar Jha on fardbeyan of Meera Devi at PMCH, Patna Exhibit 2 Fardbeyan by Pankaj Jha Exhibit 3 Injury report of Pankaj Jha PW-6 Exhibit 4 Post Mortem report by PW-7 Exhibit 5 ‘fard beyan’ of Pankaj Kumar Jha, which is written by S.I. Mahadev Paswan and signed by S.H.O. Anil Kumar exhibited by PW-8 Exhibit 6 Charge Sheet by PW-8 Exhibit 7 Formal FIR by PW-8 Exhibit 8 Petition dated 18.10.2016 by I.O. PW-8 Exhibit X The carbon copy of death inquest report identified by PW-8 List of Defence Witnesses DW-1 Raman Ji Chaudhary List of defence exhibits Exhibit A Sale deed dated 20.03.1984 in favour of Mahendra Jha, Shahendra Jha and Chandra Bhushan Jha s/o Rameshwar Jha 11. After completion of evidence of the prosecution witnesses, the statement of the accused were recorded under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’). The common stand of the accused in their statements is that the prosecution case is false and they are innocent. It is worth mentioning that Chandra Bhushan Jha (Respondent No. 2) has in course of his statement under Section 313 CrPC stated inter alia that the wife of Upendra Jha is his maternal sister (mameri behan), therefore, how can he tear off her saree. Consideration 12. We have gone through the evidence of the prosecution witnesses and the materials on the record. PW-1 Digambar Jha is a relative of the deceased which would be evident from his statement in paragraph ‘5’ of the deposition. He has stated that Jagdish Jha is his uncle. Gayatri Devi is daughter of Jagdish Jha and she is married to one Bambholi Jha. Brother-in-law of Bambholi Jha is Kari Jha and Kari Jha is brother of Upendra Jha (deceased). His statement was recorded by police after three months and he was brought by Pankaj Jha (PW-5) to give his evidence. Gayatri Devi is daughter of Jagdish Jha and she is married to one Bambholi Jha. Brother-in-law of Bambholi Jha is Kari Jha and Kari Jha is brother of Upendra Jha (deceased). His statement was recorded by police after three months and he was brought by Pankaj Jha (PW-5) to give his evidence. In his examination-in-chief, he claimed that at the time of occurrence which took place at 01:00 PM, he was plucking the bamboo leaves near the house of the deceased but in course of his cross-examination, he could not say that in which direction the said bamboo clamp is situated. He could not give the boundary of the said bamboo clamp and did not say that in which direction from the said bamboo clamp, is his house. He has stated in paragraph ‘13’ that he had gone near the house of the deceased on hearing hulla and when he reached there, his family members were already present. He has stated that when Meera Devi and Pankaj Jha came later on, Upendra Jha had already fallen down. This witness is of village Ishapur under Pandaul police station. From his testimony, it is evident that his presence at the place of occurrence is highly doubtful and he has been introduced as a witness only at a later stage. 13. Govind Jha (PW-2) is another member of the family. The deceased Upendra Jha is the uncle and the informant is son of PW-2. This witness has stated in his examination-in-chief that Chandra Bhushan Jha was cutting jimmer of the straw house and other persons were damaging the khapda by hasua, kudal and lathi and they were pulling down the house. At this moment, Upendra Jha came outside and asked them to stop whereupon Chandra Bhushan Jha abused him and asked to kill him. Chandra Bhushan Jha assaulted Upendra Jha by the backside of the axe on his head as a result whereof he fell down. Thereafter, Chandra Bhushan Jha assaulted Upendra Jha once again on the backside of his head by the axe. He has stated that when Pankaj Kumar Jha came to save then he got assault on the right shoulder but this witness cannot say as to who assaulted him. Thereafter, Chandra Bhushan Jha assaulted Upendra Jha once again on the backside of his head by the axe. He has stated that when Pankaj Kumar Jha came to save then he got assault on the right shoulder but this witness cannot say as to who assaulted him. He has stated that when he moved behind, he fell down in a ditch and thereafter, he was assaulted by all the persons as a result whereof he suffered injury on his chest. In his cross-examination, this witness has stated in paragraph ‘16’ that his son had suffered injuries on his body at 15 places but his skin was not damaged. Upendra Jha had suffered three injuries but no blood was fallen from the body of Upendra Jha. 14. Meera Devi (PW-3) is the wife of the deceased and from her examination-in-chief, it would appear that it was she alone who was present at the time of occurrence. She has stated that Chandra Bhushan had assaulted her husband on his head by an axe as a result whereof he fell down and then the second blow was given on the head whereafter Sahindra Jha with Spade, Mukesh Thakur and Prakash Thakur with lathi and other four unknown persons came. This witness has nowhere stated in her examination- in-chief that at the time of assault by Chandra Bhushan Jha, Pankaj Jha (PW-5) was present. She has only stated that when she was weeping, Pankaj Kumar came to save her then he was also assaulted by all. She has stated in paragraph ‘9’ of her deposition that she had not received any treatment. Her husband was taken for treatment by Pankaj Kumar Jha, Dhruv Jha and others. 15. Sudhira Devi (PW-4) is the mother of the informant who has nowhere stated in her examination-in-chief that Pankaj Kumar Jha (PW-5) or any other villager was present at the place of occurrence. She has not stated about any assault caused upon the informant. 16. Pankaj Kumar Jha (PW-5) has also deposed on similar lines. He has supported the prosecution case. He has stated in paragraph ‘11’ of his deposition that Chandra Bhushan Jha, Sahindra Jha and he were co-sharers and come from common ancestors. He has deposed that Upendra Jha was assaulted by ‘fasat’ of the ‘kulhari’ and in the very first assault, he had fallen down. He has supported the prosecution case. He has stated in paragraph ‘11’ of his deposition that Chandra Bhushan Jha, Sahindra Jha and he were co-sharers and come from common ancestors. He has deposed that Upendra Jha was assaulted by ‘fasat’ of the ‘kulhari’ and in the very first assault, he had fallen down. He did not remember that in which side his head was lying. In the second assault also, Upendra Jha was also assaulted by ‘fasat’ of ‘kulhari’. He was not assaulted by any other weapon and except Chandra Bhushan Jha, no other accused had assaulted Upendra Jha. 17. Dr. Mithilesh Kumar Mishra (PW-6) and Dr. Arun Kumar Singh (PW-7) have proved the injury report of Pankaj Kumar Jha (PW-5) and postmortem report of Upendra Jha (the deceased). The injury report of the PW-5 and the postmortem report of the deceased have been marked Exhibit ‘3’ and Exhibit ‘4’ respectively. 18. The injuries present on the person of PW-5 as mentioned in exhibit- ‘3’ are as under:- “1. Multiple abrasion of different size on anterior and upper part of chest. 2. Abrasion about 5cm x 1cm on left leg below knee joint. 3. Abrasion about 2cm x 2cm with mild swelling behind right ear. 4. Complain of pain all over body in which- (i) Mild swelling in skull. X-ray skull AP/lateral. (ii) Bruise about 4 cm x 2 cm on right arm. (iii) Swelling with bruise about 6 cm x 2 cm on anterior part of left thigh. X-ray left thigh AP/laterial. (iv) Swelling in right ankle joint. X-ray right ankle joint AP/lateral. Nature:- All are simple as X-ray shows no bony injuries caused by hard blunt, age within 12 hours. Mark of Identification-Black til on left cheek.” 19. The findings of PW-7 in the postmortem report are being reproduced hereunder:- “On examination R.M. was present all over the body. There was no decomposition. I.V. line in left hand. Folley’s cathetar was present. Both eyes were blackens and both eye lids were contused. There were no external injuries on the body of the deceased. On Dissection:- Haematoma under scalp was found in frontal, parietal and left temporal region. One comminuted fracture of 5”X4” size involving left temporal, left frontal and left parietal bone. Extradural haematoma was found of 4”X2” on both side of frontal, parietal and temporal region. There were no external injuries on the body of the deceased. On Dissection:- Haematoma under scalp was found in frontal, parietal and left temporal region. One comminuted fracture of 5”X4” size involving left temporal, left frontal and left parietal bone. Extradural haematoma was found of 4”X2” on both side of frontal, parietal and temporal region. Subdural haematoma was found on both side of brain and base of brain. Stomach contained about 100 ml yellow fluid. Bladder was empty. In general all viscera were found congested. Opinion:- (a) Time since death - Within 12 hours approx. (b) Cause of death - Head injury. (c) Nature of violence - Hard and Blunt object and its impact.” 20. Pramod Prasad, S.I. has been examined as PW-8 and from his deposition, it appears to this Court that he had, in fact, not visited the place of occurrence. He has, however, given the boundary of the place of occurrence. In paragraph ‘23’ of his deposition, he has stated that he had recorded statement of the witnesses prior to inspection of the place of occurrence and he had recorded their statements in the village of the place of occurrence. He had not mentioned the time of recording of their statements. He had inspected the place of occurrence in the night but had not mentioned the time of his inspection in the case diary and he had not mentioned that who had shown him the place of occurrence. Since the defence has not questioned the place of occurrence, we need not delve into this issue. Chandra Bhushan Jha (Respondent No. 2) did not prefer any appeal against the judgment of the learned trial court. Similar is the position with Respondent No.3 to Respondent No.5. They have served the sentence awarded to them by the learned trial court. 21. On perusal of the entire evidences, this Court is of the considered opinion that the occurrence has taken place in the spur of moment. Land dispute is admitted between the parties. They are co-sharers and from the kind of weapons which they were holding in their hands, it may be safely recorded that those are the traditional kind of weapons which are normally used either for agricultural work or for construction of house. We do not find any reason to reach to an irresistible conclusion that Chandra Bhushan Jha (Respondent No.2) had an intention to kill Upendra Jha. We do not find any reason to reach to an irresistible conclusion that Chandra Bhushan Jha (Respondent No.2) had an intention to kill Upendra Jha. In absence of any material on the record to conclude any intention on the part of Chandra Bhushan Jha (Respondent No.2) to kill the deceased, if the learned trial court has taken a view that the overt act in the present case would fall under Exception 4 of Section 300 IPC, we would not find any fault with that. 22. Section 300 IPC with it’s exception 4 IPC are quoted hereunder for a ready reference:- “ 300. Murder .--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- Secondly.-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- Thirdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 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. Exception 2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence or 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. 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's 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.” 23. This case comes under exception ‘4’ above. 24. We are conscious that this is an appeal against acquittal of the charge under Section 302 IPC, however, the principles which are followed in the matter of interference with the judgment of acquittal would be equally applicable in the present case. 25. In result, this Court declines to interfere with the impugned judgment. This appeal is dismissed.