JUDGMENT : R. Mukhopadhyay, J. Heard Mr. Mukesh Kumar, learned counsel for the appellant and Ms. Nehala Sharmin, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 19-12-2013 (sentence passed on 20-12-2013) passed by Shri Vivekanand Banerjee, learned Additional Sessions Judge-VIII, Hazaribag in S.T. No.265 of 2010 whereby and whereunder the appellant has been convicted for the offence under Section 302 I.P.C. and has been sentenced to rigorous imprisonment for life. 3. The prosecution case arises out of the Fardbayan of Fulmatiya Devi recorded on 07.04.2010 in which it has been stated that for the purposes of treatment the informant had come to her parents' place along with her children. The husband of the informant namely Shravan Sharma (appellant) had also come to her parents' place on 6th April 2010 and stayed the night at the said place. It has been alleged that on 7th April 2010 at 11.30 a.m. the informant along with her parents were sitting in the veranda when the husband of the informant came and asked the informant to go to her matrimonial house which was retorted to by the mother of the informant that she will get her daughter treated at her place as she is not given proper treatment at her matrimonial house. This enraged the husband of the informant who picked up a hammer kept in the courtyard and assaulted the mother of the informant on her head which resulted in her death immediately. The villagers had apprehended the husband of the informant while he was trying to flee away and information was given to the police. Based on the aforesaid allegations, Gorhar P.S. Case No. 11/2010 was instituted for the offence under Section 302 IPC against Shravan Sharma. 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.365/2010. Charge was framed against the accused under Section 302 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 10 witnesses in support of its case. 5. Charge was framed against the accused under Section 302 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 10 witnesses in support of its case. 5. P.W.1 Ganesh Ravidas has stated that on 07-04-2010 at 11.00 a.m. he was in his house when on hearing a commotion he had gone to the house of Fulmatiya and had seen the mother of Fulmatiya lying dead. Fulmatiya had disclosed that her husband had assaulted her mother with a hammer. In cross-examination he has deposed that he is not an eyewitness to the occurrence. 6. P.W.2 Dilip Modi has stated that on 07-04-2010 at 11.30 a.m. he was in his house when he heard a cry of alarm from the house of Bigan Rana and when he went to the source of the alarm he had seen Phulwa Devi and Bigan Rana crying. When he went inside the house of Bigan Rana, he had seen Malti Devi lying on the ground in an unconscious state with blood coming out from her head. Fulmati had disclosed that her husband Shravan Rana had assaulted on the head of her mother with a hammer. When he returned after trying to arrange for a vehicle he had found Malti Devi lying dead. Shravan Rana was standing outside the house. In cross-examination he has deposed that the distance between his house and the place of occurrence is about 200 meters. He had stated whatever had been disclosed to him by Fulmati. His statement was recorded by the police at the place of occurrence itself. 7. P.W.3 Arjun Paswan has stated that he was in his house and on hearing a commotion he had gone to the house of Malti Devi where he found Malti Devi lying dead in a pool of blood. He had come to know that on account of a difference of opinion with respect to the treatment of Phulwa Devi the assault was committed by the accused. In cross-examination he has deposed that at the time of the incident he was in his house. 8. P.W.4 Sita Devi has stated that she was in her house and on hearing a commotion she had come out on the road where a crowd had already gathered. In cross-examination he has deposed that at the time of the incident he was in his house. 8. P.W.4 Sita Devi has stated that she was in her house and on hearing a commotion she had come out on the road where a crowd had already gathered. When she went to the house of Phulwa she found the mother of Phulwa dead. The cause of the assault was the refusal on the part of Malti Devi to give Bidai of her daughter which enraged the accused and resultantly the assault was committed. In cross-examination she has deposed that when she had reached the place of occurrence Malti Devi was already dead by then. 9. P.W.5 Krishna Rana has stated that he knows the accused who is the son-in-law of Bigan Rana. He was in his house when he heard the sound of Fulmati Devi at which he went to her house and saw the accused with a hammer which he snatched from his hands. He had seen marks of injury on the head of Malti Devi which resulted in her death. In cross-examination he has deposed that his house is at a distance of 25 feet from the place of occurrence. He had reached the place of occurrence within 15-20 minutes from the time he had heard the cry of alarm. When he had reached the place of occurrence, Malti Devi was already dead by then. 10. P.W.6 Binod Rana has stated that on 7th April 2010 at 11.30 a.m. he was in his house when he heard a commotion from the house of his uncle Bigan Rana and when he went there he found his aunt in a distressed state and there was a mark of injury on her head. Shravan Rana had an iron hammer with which he had committed the assault. After 4-5 minutes his aunt succumbed to her injuries. Shravan Rana used to torture his wife Fulmatiya Devi. In cross-examination he has deposed that he had immediately rushed to the place of occurrence. 11. P.W.7 Mahaveer Uraon was posted at Gorhar P.S. as Assistant Sub-Inspector of Police and on 7th April 2010 he had recorded the Fardbayan of Fulmati. He has proved the Fardbayan which has been marked as Exhibit-1. The endorsement on the Fardbayan has been proved and marked as Exhibit-2. 11. P.W.7 Mahaveer Uraon was posted at Gorhar P.S. as Assistant Sub-Inspector of Police and on 7th April 2010 he had recorded the Fardbayan of Fulmati. He has proved the Fardbayan which has been marked as Exhibit-1. The endorsement on the Fardbayan has been proved and marked as Exhibit-2. On the basis of the Fardbayan of the informant Gorhar P.S. Case No. 12/2010 was instituted. The formal F.I.R has been proved and marked as Exhibit-3. He has proved the seizure list which has been marked as Exhibit-4. After taking over investigation he had recorded the restatement of the informant and had also inspected the place of occurrence which is at village Bandasinga in the house of the deceased. In course of investigation he had recorded the statements of the witnesses and had also prepared the inquest report. He has proved the requisition for treatment of the accused at Sadar Hospital which has been marked as Exhibit-5. He had obtained the post-mortem report and on completion of investigation had submitted chart sheet. In cross-examination he has deposed that he had not investigated on the point of the relationship between Fulmati and her husband. 12. P.W.8 Puja Kumari has stated that her grandmother was assaulted by her uncle (Mausa) with a hammer on head and she died. In cross-examination she has deposed that she had witnessed the occurrence. 13. P.W.9 Fulmati Devi is the informant and the daughter of the deceased who has stated that when she was sick she was in her matrimonial house and since her husband did not get her treated, she had come to her parents place. She had come to her parents place on Monday evening and her husband had come on the next evening. In the morning her husband expressed his desire to take her back to her matrimonial house at which her mother had retorted that she will go back once her treatment is completed. When she had also refused to go back with her husband, he had assaulted her mother on the head with a hammer as a result of which she died. The police had come and her Fardbayan was recorded. She has proved her signature in the Fardbayan which has been marked as Exhibit-1/1. In cross-examination she has deposed that she had witnessed her husband committing assault upon her mother. The police had come and her Fardbayan was recorded. She has proved her signature in the Fardbayan which has been marked as Exhibit-1/1. In cross-examination she has deposed that she had witnessed her husband committing assault upon her mother. An altercation was going on from before between her husband and her mother. The hammer which was used in the murder was recovered by the police. 14. P.W.10 Dr. Krishna Kumar was posted as a Medical Officer at Sadar Hospital, Hazaribagh and on 7th April 2010 he had conducted autopsy on the dead body of Malti Devi and had found the following:- (i) one lacerated wound 2” x 1½” x muscle and bone deep with blood clot on left post interior head scalp of termal bone (L) and brain deep (ii) defuse swelling with defuse bruise on right forehead with fracture of frontal bone and sub clabal heamotoma. The cause of death was opined to be due to head injuries, brain injury with blood loss caused by heavy hard blunt object. He has proved the post mortem report which has been marked as Exhibit-6. In cross-examination he has deposed that the injuries may be possible by fall from high altitude over hard and blunt substance. 15. The statement of the accused was recorded under Section 313 Cr.P.C in which he has denied his complicity in the murder of Malti Devi. 16. It has been submitted by Mr. Mukesh Kumar, learned counsel for the appellant that there are major contradictions in the evidence of the witnesses. It has been submitted that as per the Fardbayan the father of the informant was also present but he has not been examined while P.W. 8 who was not present at the place of occurrence has been examined and who has claimed herself to be an eye witness. Mr. Mukesh Kumar, learned counsel has submitted that even if it is assumed that the appellant was instrumental in committing the assault, no case for murder is made out against the appellant as neither it was a premeditated act nor the appellant was armed from before. The incident was a culmination of the altercation which was going on between the appellant and the deceased and in such circumstances at best the conviction should have been recorded under Section 304 Part-1 I.P.C. 17. Mrs. The incident was a culmination of the altercation which was going on between the appellant and the deceased and in such circumstances at best the conviction should have been recorded under Section 304 Part-1 I.P.C. 17. Mrs. Nehala Sharmin, learned A.P.P has submitted that the evidence of P.W. 8 and P.W. 9 clearly reveals that it was the appellant who had committed the murder of his mother-in-law without there being any justifiable cause for such act. 18. We have heard the learned counsel for the respective parties and have also perused the trial court records. 19. The refusal on the part of the mother of the informant Malti Devi to give Bidai of her daughter led to an assault committed by the appellant with a hammer on her head which ultimately proved fatal for her. P.W.9 is the informant and the wife of the appellant in whose presence the occurrence had taken place and she has given a vivid description of the assault and the reason for the same. P.W. 8 is the niece of the appellant who also has stated about the role played by the appellant in the murder of her grandmother. P.W. 5 and P.W. 6 are the neighbours who had rushed to the place of occurrence and had seen the appellant standing with a hammer. The presence of the appellant with a hammer further corroborates the evidence of P.W. 8 and P.W. 9. As per the seizure list, the blood-stained hammer was seized from the veranda of the house of the deceased. The post-mortem report also corroborates the manner of assault attributed to the appellant. The evidence of the prosecution, therefore, proves beyond any reasonable doubt that it was the appellant who had committed the assault on the head of Malti Devi which led to her death. The reason for the assault has also been depicted by P.W.9. P.W.9 was ill and was not given treatment at her matrimonial house which compelled P.W.9 to go to her parents' place. On 7th April 2010 the appellant had insisted that the Bidai of his wife be done in order to enable him to return back to his place. This was refused by Malti Devi who had stated that once the treatment is complete she will send her daughter to her matrimonial house. She had also stated about not getting proper medical treatment at her matrimonial house. This was refused by Malti Devi who had stated that once the treatment is complete she will send her daughter to her matrimonial house. She had also stated about not getting proper medical treatment at her matrimonial house. The refusal on the part of Malti Devi enraged the appellant who took up a hammer lying in the courtyard and gave a blow on the head of Malti Devi who succumbed to such assault. Such act on the part of the appellant would invite a conviction under Section 304 Part-1 of I.P.C. 20. We, therefore, on the basis of discussions made herein above modify the judgment and order of conviction and sentence dated 19-12-2013 (sentence passed on 20-12-2013) passed by Shri Vivekanand Banerjee, learned Additional Sessions Judge-VIII, Hazaribagh in S.T. No. 265 of 2010 and convict the appellant for the offence under Section 304 Part 1 IPC and sentence him to undergo rigorous imprisonment for 10 years. 21. This appeal stands disposed of with the aforesaid modification in the conviction and sentence imposed upon the appellant. 22. Since the appellant is in custody and has completed the modified sentence imposed upon him, he is directed to be released immediately and forthwith, if not wanted in any other case. 23. Pending interlocutory application(s), if any, stand(s) closed.