S. L. TALATI, J. ( 1 ) THE facts which gave rise to these two appeals may be briefly stated as under. An incident occurred in Kumbharwada circle in the city of Bhavnagar on 24th July 19/9 at about 12-30 P. M. and in that incident one Alarakha Valimohmed expired and P. W. 1 Rahimaben Suleman (Ex. 19 P. W. 2 Hanifa Alarakha (Ex. 20) and P. W. 3 Rehmatben Alarakha (Ex. 21) received injuries. The prosecution case was that on the previous date of the incident some altercation regarding money transaction had taken place between deceased and accused No. 2. Deceased Alarakha was residing in Kumbharvada circle with his wife Hanifa daughter Rehmatben and wifes cousin sister Sharifaben. It also appears that Rahimbu wife of Suleman Valimohmed is the sister of Sharifaben and she was married to younger brother of the deceased. According to the prosecution case at the time of the incident accused No. 1 accused No. 2 and accused No. 4 were armed with knives and the rest of the accused were armed with sticks. Goswami P. W. I (P. W. 16) at the relevant time was serving in Bhavnagar. He received Station diary entry which Police Station Officer Kathadbhai Naranbhai had made and on the basis of that information Goswami (Ex. 47) went to the hospital and recorded the complaint of Rahimaben. Offence was registered and investigation was started. Inquest panchnama on the dead body of Allarakha was prepared and thereafter statements of Hanifa Sharifa and Rahima were recorded. Panchnamas in regard to the bodily conditions of Rahimaben Hanifaben and Rehmatben were made and bloodstained clothes were attached. Thereafter panchnama of the scene of offence was prepared and blood stained earth was attached. At that particular point of time accused Nos. 1 3 4 and 5 came to the Police Station and they were arrested after preparing arrest panchnama. Accused No. 6 was thereafter arrested and accused No. 2 was arrested from the hospital. Accused No. 4 had injuries on his head and therefore he was sent for treatment to the hospital. The accused were sent to judicial custody. Ultimately after completing the investigation on 5th October 1979; charge sge sheet was submitted against all the accused persons in the Court of the Judicial Magistrate Bhavnagar. In due course the case came to be committed to the Court of Sessions. The accused were sent to judicial custody. Ultimately after completing the investigation on 5th October 1979; charge sge sheet was submitted against all the accused persons in the Court of the Judicial Magistrate Bhavnagar. In due course the case came to be committed to the Court of Sessions. All the accused were charged for offences punishable under secs. 147 148 149 323 324 326 and 302 of the Indian Penal Code. ( 2 ) ULTIMATELY at the trial the prosecution examined 16 witnesses. ( 3 ) ALL the accused denied the guilt and accused No. 2 filed the written statement Ex 50. In that written statement he stated that he along with one Kasam Jafar were going towards Kumbharvada circle from railway crossing side and they reached near one Sindhi shop. At that place Alarakha Valimohmed Ahmed Suleman Rafiq Suleman Rahimaben Suleman Hanifa Alarakha Rehmat Alarakha and Sharifa Ebrahim were standing there. They were all armed and all those persons surrounded them for beating them. According to accused No. 2 Rafiq gave a blow to Kasam Jafar and he ran away. Thereafter Alarakha Valimohmed gave an axe blow on his head and Ahmed Suleman gave a dharia blow and Rafiq gave a knife blow. He also tried to run away but he tried to catch him and therefore he took out a knife from his pocket and whirled it whirling that knife he ran away ( 4 ) ULTIMATELY the learned Sessions Judge on appreciation of the above evidence and the defence version acquitted accused Nos. 1 3 4 5 and 6 for all the offences for which they were charged. However the learned Sessions Judge Bhavnagar convicted accused No. 2 for offences punishable under secs. 302 326 and 324 of the Indian Penal Code. For rest of the offences accused No. 2 was also acquitted. Accused No. 2 was given life imprisonment for an offence under sec. 302 of the Indian Penal Code and he was sentenced to R. I. for seven years for the offence under sec. 326 of the Indian Penal Code and was sentenced to R. I. for two years for an offence under sec. 324 of the Indian Penal Code. Accused No. 2 preferred Criminal Appeal No. 467 of 1980 challenging his conviction; while the State filed Criminal Appeal No. 684 of 1980 challenging the acquittal of the other accused persons. 326 of the Indian Penal Code and was sentenced to R. I. for two years for an offence under sec. 324 of the Indian Penal Code. Accused No. 2 preferred Criminal Appeal No. 467 of 1980 challenging his conviction; while the State filed Criminal Appeal No. 684 of 1980 challenging the acquittal of the other accused persons. Both the appeals were heard together and they are being disposed of by this common judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . [his Lordship after discussing the evidence further observed :] ( 5 ) THE evidence of Madha Lakha P. W. 6 Ex. 24 clearly established that it was doubtful as to whether accused Nos. 1 and 4 were also present at the time of occurrence. One cannot forget that accused Nos. 2 and 4 had injuries. Accused No. 4 had injuries which were not of very serious nature. Accused No. 2 had definitely incised wounds on his head. We have already stated that he could not have received the injuries in the beginning of the incident. Otherwise it would never have been possible for him to inflict 10 injuries on Alarakha and thereafter give blows to four females. Therefore the incident did not occur in the manner in which it was suggested by the prosecution and it also did not occur in the manner in which it is suggested by the defence. It is more than clear that because of the hubbub Alarakha had gone out and at that time perhaps there was exchange of words and ultimately a quarrel which led to fight between accused Nos. 2 4 and Alarakha. Each one therefore would be responsible for the act that he did. Alarakha ultimately fell down and practically was dead for all purposes except that he was removed to the hospital where he was alive for hardly 20 minutes. All the vital parts of his body were injured. Peritoneum liver and kidney were damaged. Several blows with knife were given. Hearing this hubbub the females came out one by one from the house and as and when they came out each one of them was given a blow with knife by accused No. 2 alone. All the vital parts of his body were injured. Peritoneum liver and kidney were damaged. Several blows with knife were given. Hearing this hubbub the females came out one by one from the house and as and when they came out each one of them was given a blow with knife by accused No. 2 alone. Now therefore accused No. 2 is the only person responsible for the acts which were done on that date in broad daylight. It was noon time and the incident happened near the shop of Madha Lakha (P. W. 6 Ex. 24 ). Under these circumstances the acquittal recorded so far as accused Nos. 1 3 4 5 and 6 is concerned is absolutely proper and correct and therefore Criminal Appeal No. 684 of 1980 is required to be dismissed. ( 6 ) NOW so far as Criminal Appeal No. 467 of 1980 is concerned we have to determine as to what offence is committed by accused No. 2 It is clear that the version given by the prosecution is not wholly correct. An attempt has been made to implicate as many persons as possible. Though no sticks were used it is imputed that the stick blows were given. Though the incident happened near the shop of Madha Lakha it is suggested that the incident happened in the house of Alarakha. It is not clear as to who started the attack and therefore who had a right of private defence. But it is clear that an old man was done to death by giving him several blows. Under these circumstances it appears to us that here is a case which will be covered by Exception 4 to sec. 300 Indian Penal Code which reads as under:"exception 4: Culpable homicide is not murder if it is committed without premedilation in a sudden fight in the beat 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 that provocation or commits the first assault. "so far as the sudden fight is concerned we may say that the most important element of this Exception is that there should be a fight i. e. at least an offer of violence on both sides. EXPLANATION. It is immaterial in such cases which party offers that provocation or commits the first assault. "so far as the sudden fight is concerned we may say that the most important element of this Exception is that there should be a fight i. e. at least an offer of violence on both sides. The word fight as used in Exception 4 does not necessarily mean a fight with weapons. A fight is a combat between two or more persons whether with or without weapons. The act must be a sudden act. ( 7 ) NOW therefore when the evidence of this nature is required to be appreciated the benefit is not given merely because it is not possible to come to a definite conclusion We have to appreciate the evidence and come to a definite conclusion and find out and assess the situation and come to a conclusion as to what must have happened. This would mean that we have to separate the truth from the falsehood and therefore when we try to separate the truth from falsehood it is clear that the story is neither wholly true nor wholly false. It is not clear whether the sticks were used. Accused Nos. 3 5 and 6 were therefore not responsible for anything that happened. It was clear that the incident did not happen in the house. It was clear that the incident happened near the shop of Madha Lakha (P. W. 6 ). Now at that place it is more than clear that accused Nos. 2 and 4 had come. Alarakha was also there. Therefore it is clear that accused No. 4 after receiving the injuries ran away. Accused No. 2 and Alarakha came to quarrel and ultimately a sudden fight took place. It is not clear as to who gave the first blow but it is more than clear that both the blows given on the head of accused No. 2 were not given by Alarakha in the manner he suggested. Otherwise it would never have been possible for him to give several blows to Alarakha and injure four fermales with knife. Therefore it is very likely and it must have happened that it was accused No. 2 who started the fight; but when the other man was also willing to fight with or without weapon it is clear that it was a sudden fight and quarrel. Therefore it is very likely and it must have happened that it was accused No. 2 who started the fight; but when the other man was also willing to fight with or without weapon it is clear that it was a sudden fight and quarrel. It is under these circumstances that Exception 4 to sec. 300 of the Indian Penal Code applies. And. in the case of JUMMAN V. THE STATE OF PUNJAB A. I. R. 1957 S. C. 469 the Supreme Court held that where a mutual conflict develops and there is no reliable and acceptable evidence as to how it started and as to who was the aggressor it will not be correct to assume private defence for both sides. Such a case will be a case of sudden fight and conflict and has to be dealt with under sec. 300 I. P. C. Exception 4. In that case the Supreme Court had come to a definite conclusion and that definite conclusion was recorded as under:"what must have happened was that both the parties being armed when they came into conflict weapons must have been used by the prosecution witnesses also on the accused We have no doubt whatever that in such an encounter it is the three deceased that got worsted when injuries were inflicted on them And in regard to P W 19 and 21 the Supreme Court observed as under:to this extent we have believed the evidence of P Ws. 19 and 21 but we do not think that their suppression of the injuries on Jumman and Darshu could make their evidence totally unblievable. " ( 8 ) IN this case also we have come to the conclusion that the evidence of P. W. I Rahima P. W. 2 Hanifa P. W. 3 Rehmat and P. W. 4 Sharifa we have got to believe and we do not think that their suppression of the injuries on accused Nos. 2 and 4 could make their evidence totally unbelievable though their evidence we have partly believed and partly not believed. ( 9 ) UNDER those circumstances we partly allow Criminal Appeal No. 467 of 1980 and set aside the conviction of accused No. 2 under sec. 302 Indian Penal Code and convict accused No. 2 for an offence under sec. 304 Part I Indian Penal Code and sentence him to suffer R. I. for seven years. ( 9 ) UNDER those circumstances we partly allow Criminal Appeal No. 467 of 1980 and set aside the conviction of accused No. 2 under sec. 302 Indian Penal Code and convict accused No. 2 for an offence under sec. 304 Part I Indian Penal Code and sentence him to suffer R. I. for seven years. His conviction under sec. 326 and sec. 324 Indian Penal Code and sentences inflicted therefor are maintained. The substantive sentences to run concurrently. ( 10 ) CRIMINAL Appeal No. 684 of 1980 preferred by the State is dismissed. .