JUDGMENT : B.K. Patra, J. - The Appellant? was convicted u/s 302, Indian Penal Code for having committed the murder of his paternal uncle Sira Paramanik, and was sentenced to undergo imprisonment for life. The deceased Sira Paramanik and his two brothers Nira Paramanik and Dinabandhu Paramanik had separated from one another long before the occurrence. Nira is dead and the Appellant Mayadhar is his son The deceased Sira bad his residential house at a distance from the house of Mayadhar and Dinabandhu. Near about the house of the accused, Dinabandhu bad a vacant piece of land. As Sira wanted to shift to this place, be was permitted by Dinabandhu to put up his residential house on this vacant piece of land and Sira took up construction of the house on this land on a Tuesday in the month of Baisakh in the year 1968. The accused objected to this and there was some alliteration between him and Sira. The next day, that is, on 17-4-1968 the Appellant went inside his village to call some Bhadraloks and he came back with them to the spot. Dinabandhu also came there. On finding so many persons at the spot, Sira questioned the accused why they had all come, whereupon, the Appellant picked up a Barsi lying on the ground and gave a blow with the blunt side of it on the head of Sira who fell down senseless. Sira was thereafter removed to the Keonjhar hospital where he died a few hours after his admission. First Information was lodged by Dinabandhu in the Thana, and after necessary investigation, the Appellant was put on trial. 2. The Appellant denied having committed the offence. He stated that on the night preceding the occurrence, Sirs who was dead drunk came to his (Appellant?s) house, unhinged the door leaves and entered into the house with a view to assault him. Out of fear the Appellant ran away from his house and took shelter in the house of his neighbour. On the next morning, when his mother was enquiring as to who caused the damage to her door leaves, Sira came out of his house, rebuked her in filthy language and pelted clods of earth and pieces of wood at her. As the Appellant protested, Sira ran to him with a Barsi in band. On the next morning, when his mother was enquiring as to who caused the damage to her door leaves, Sira came out of his house, rebuked her in filthy language and pelted clods of earth and pieces of wood at her. As the Appellant protested, Sira ran to him with a Barsi in band. The Appellant caught hold of the Barsi and there ensued a struggle between them in course of which the Barsi somehow struck the head of the deceased. 3. The learned Sessions Judge disbelieved the plea set up by the Appellant and relying mainly on the testimony of the eye witnesses p.ws. 1, 3, 4,5 and 6, convicted the Appellant. 4. We have carefully gone through the evidence of these eye-witnesses and all of them have stated that the Appellant picked up the Barsi and dealt a blow with the blunt edge of it on the head of Sira. None of them said that before this assault Sira had thrown any clods of earth or pieces of wood at the mother of the Appellant, although all these witnesses did say that by the time the Appellant arrived at the spot with the Bhadraloks, a quarrel was going on between the Appellant?s mother and Sira. Nothing has been elicited in the cross-examination of these witnesses to indicate that they had any motive to depose against the Appellant. p.w. 1 is the Appellants paternal uncle (Dinabandhu) and p.ws. 3 to 6 are the Bhadraloks whom the Appellant himself had called to the spot. We are, therefore, satisfied that the prosecution has proved beyond all reasonable doubt that the Appellant himself picked up the Barsi which was lying at the spot and dealt a blow with the blunt edge of it on Sira?s head. 5. That it is the single blow with the Barsi which has resulted in the death of Sira is not disputed. The evidence of the doctor p.w. 11 shows that the blow caused the fracture in the skull and the death was due to intracranial and subdural hemorrhage and shock caused by the fracture. In his opinion that injury is sufficient in the ordinary course of nature to cause death. 6. As regards the nature of the offence that was committed, the learned Advocate for the Appellant contends that case would be covered by Exception 4 to Section 300. Indian Penal Code. In his opinion that injury is sufficient in the ordinary course of nature to cause death. 6. As regards the nature of the offence that was committed, the learned Advocate for the Appellant contends that case would be covered by Exception 4 to Section 300. Indian Penal Code. For the application of this Exception, it must be found (1) that there was a sudden fight, (2) absence of premeditation, and (ii) that the accused has not taken undue advantage or acted in a cruel manner. The expression "sudden" implies that the fight should not have been pre-arranged, and the word "fight" is used to convey something more than a verbal quarrel. It is not necessary that any weapon should have been used in a fight. If a person receives a blow, and immediately avenges it with any instrument that he may happen to have in his band, or nearby, then the offence will be culpable homicide not amounting to murder provided the blow is attributed to the passion of anger arising from that previous provocation. But the law requires that there should be that provocation and secondly that the fatal blow should be clearly traced to the influence of passion arising from that provocation. In this case, the evidence only establishes that by the time the Appellant came to the spot with the Bhadraloks, mother was engaged in a mere verbal quarrel with the deceased. The Appellant did not join in the quarrel. There is nothing in evidence to show that the conduct of the deceased was such as to give any provocation to the Appellant. Although it may be said that there was no premeditation on the part of the Appellant to kill the deceased yet we are unable to hold that there was any sudden fight as contemplated in Exception 4. Even assuming that there was a sudden fight and there was no premeditation, the Exception cannot apply unless it is further established that the Appellant had not taken any undue advantage of the position of the deceased. The expression "undue advantage" means unfair advantage. An assailant cannot but be said to have taken undue advantage of his victim if the latter is taken completely unawares and is struck when he does not even suspect that he is about to be struck. The expression "undue advantage" means unfair advantage. An assailant cannot but be said to have taken undue advantage of his victim if the latter is taken completely unawares and is struck when he does not even suspect that he is about to be struck. There is no evidence to show that while the deceased was engaged in a quarrel with the Appellant?s mother, he was armed even with a lathi in his hand not to speak of any deadlier weapon. He must have been completely taken unawares when the Appellant an on a sudden appeared at the scene and without even questioning the deceased as to why he was quarrelling with his mother picked up a Barsi and dealt the fatal blow on the head of the deceased. In such circumstances, we are satisfied that this case cannot be covered by Exception 4 to Section 300, Indian Penal Code. 7. We find no merit in this appeal which is accordingly dismissed. R.N. Misra, J. 8. I agree. Final Result : Dismissed