J. M. MAHAPATRA, J. ( 1 ) THE appeal is directed against the judgment and order dated 30-6-1987 of the learned Sessions Judge, Sundargarh convicting the appellant under Sections 449 and 302, I. P. C. and sentencing him respectively to undergo R. I. for five years and imprisonment for life. ( 2 ) PUT briefly the facts of the case are these. The appellant and the deceased are separated brothers and living in the same village in adjoining houses. P. W. 1 is the widow of the deceased and P. W. 2 is the mother of both the appellant and the deceased. A few months prior to the date of occurrence, the appellant had spent some money for the deceased for his treatment in Birla Medical College Hospital. The appellant continued to ask the deceased to pay back the money, and the deceased was expressing his inability to pay. On this issue there used to be frequent quarrels between the two brothers. On 5-8-1986 in the morning hours at about 6. 30 a. m. , while the deceased had sat in front of the burning harth, the appellant suddenly came with a Tabia (M. O. I.) and dealt successive blows on the deceased on his head, neck and shoulder, thereby causing bleeding injuries to which the deceased succumbed. P. Ws. 1 and 2 informed the incident to P. W. 3, one of the brothers of the deceased, who proceeded to Bandega Out Post and verbally reported the matter to A. S. I. of Police, P. W. 7 at the out-post. P. W. 7 prepared the plain paper F. I. R. as per Ext. 9 and recorded the incident in the Station Diary entry as per Ext. 10. He sent Ext. 9 to Talsara Police Station for registration and proceeded to the spot for preliminary investigation. P. W. 9 the Officer-in-charge of Talsara P. S. on receipt of the message from P. W. 7 reached the spot, and took charge of the investigation of the case from P. W. 7. P. W. 7 had held inquest over the dead body of the deceased and sent the dead body for post-mortem examination. He had also seized the Tabla, M. O. I. from the possession of the appellant. P. W. 8 continued the investigation and eventually submitted charge sheet against the appellant on 31-10-86. P. W. 7 had held inquest over the dead body of the deceased and sent the dead body for post-mortem examination. He had also seized the Tabla, M. O. I. from the possession of the appellant. P. W. 8 continued the investigation and eventually submitted charge sheet against the appellant on 31-10-86. The appellant being committed to the Court of Session stood his trial for the offence of murder of the deceased and allied offence and was convicted and sentenced as indicated earlier. ( 3 ) IN support of its case prosecution has examined as many as eight witnesses, of whom P. Ws. 1 and 2 the widow and mother of the deceased respectively are the eyewitnesses to the occurrence. P. W. 3 the informant, P. W. 4 a witness to extra judicial confession, P. W. 5 a seizure witness, P. W. 6 the medical officer who had conducted post-mortem examination on the dead body of the deceased, and P. Ws. 7 and 8 are the Investigating Officers of the case. ( 4 ) PROSECUTION case rests mainly on the ocular testimony of the two eyewitnesses, P. Ws. 1, and 2, the extra judicial confession of the appellant before P. W. 4 and a few other circumstances like seizure of M. O. I. , the blood stained Tabla, M. O. II, the blood stained Dhoti from the appellant, the report of the Chemical Examiner and Serologist and the medical evidence of P. W. 6. The learned trial Judge in his well discussed judgment has dealt with all these various aspects in meticulous details and came to hold that it was the appellant who was responsible for causing the death of the deceased. Accordingly he convicted him for the offence of murder of his brother, the deceased as also for the allied offence u/s. 449, IPC. ( 5 ) MR. Das appearing for the appellant does not seriously challenge the finding of the learned trial Judge that the appellant had assaulted the deceased by means of Tabla M. O. I and thereby caused severe injuries on his person resulting in his death. The various items of evidence proved against the appellant and as noticed by the learned trial Judge also were not seriously challenged. But it is vehemently urged that the appellant should have been convicted u/s. 304, I. P. C for culpable homicide not amounting to murder. The various items of evidence proved against the appellant and as noticed by the learned trial Judge also were not seriously challenged. But it is vehemently urged that the appellant should have been convicted u/s. 304, I. P. C for culpable homicide not amounting to murder. For proper appreciation of the contentions raised on behalf of the appellant, we propose to briefly discuss the evidence on record. ( 6 ) BEFORE proceeding to discuss the ocular testimony of the eye witnesses P. Ws. 1 and 2, we propose to discuss the medical evidence furnished by P. W. 6, conducting autopsy on the dead body of the deceased P. W. 6 found the following six incised wounds on the person of the deceased: - (1) One incised wound of length 5" x 21/2" x 4" size over the upper part of back of neck placed obliquely extending from left mastoid process to 1/2" below right mastoid process tailing towards right side. The muscles of the back of neck, left mastoid process, of first survical Vertebra and the odontoid process of second scervical vertebra were cut completely. The spinal cord with its covering were completely cut at that level, the vertebral vessels, the internal jugular veins of both sides were cut. The whole wound was covered with dried blood clots and there was gaping of the edges. (2) One incised wound of length 4" x 1/2" x -" placed obliquely over the head 31/2" above glabella, the muscles of the scalp and frontal bone were completely cut along the line of wound. There was tailing to right side. The wound was covered with dried blood clots. (3) One incised wound of length 3" x 1/2" x 1/3" placed obliquely over the head 2" above the occipital protuberance with dried blood clots over it. (4) One incised wound of length 2" x 1" x 1/2" placed obliquely over lateral part of right shoulder tailing posteriorly. The muscle underneath was cut, and there was dried blood clots over the wound. (5) One incised wound of length 2" x 1/2" x 1/2" placed obliquely over the thigh above left knee joint on antero medial aspect. The muscles underneath was cut. Wound covered with dried blood clots. (6) One incised wound 11/2" x -" x 1/2" over left arm posteriorly 1" above left medical spicendyle. Muscles underneath was cut. Wound covered with dried blood clots. The muscles underneath was cut. Wound covered with dried blood clots. (6) One incised wound 11/2" x -" x 1/2" over left arm posteriorly 1" above left medical spicendyle. Muscles underneath was cut. Wound covered with dried blood clots. According to him injury No. 1 was sufficient in ordinary course of nature to cause death, and death was due to haemorrhage and shock due to the injury to the large vessels and vital organs like spinal cord. The evidence of the medical officer thus discloses that the death of the deceased was homicidal, and this fact is not disputed by the learned counsel for the appellant. ( 7 ) COMING to the ocular testimony of p. Ws. 1 and 2 the widow and mother of the deceased respectively, it would be noticed that both of them were present in the house of the deceased when the incident took place in the early hours or the day P. W. 1 has deposed that while the deceased was sitting inside the house on the verandah the appellant came with a Tabla and hit the deceased on different parts of his head, neck and both the shoulders, as a result of which the deceased fell down on the ground with bleeding injuries. The deceased succumbed to the injuries on the spot. On hearing the alarm P. W. 3 one of the brothers of the appellant and deceased came to the spot. In cross-examination, it is elicited that there used to be frequent quarrels between the appellant and the deceased over the repayment of money by the deceased, which he owed to the appellant for spending on his treatment. In fact one such quarrel took place two days prior to the incident. However, both the appellant and the deceased were on visiting terms with each other. It is further elicited in cross-examination that the appellant and the deceased were engaged in quarrel just before the deceased was assaulted by the appellant, and that in course of such quarrel there was marpit between the two. However, both the appellant and the deceased were on visiting terms with each other. It is further elicited in cross-examination that the appellant and the deceased were engaged in quarrel just before the deceased was assaulted by the appellant, and that in course of such quarrel there was marpit between the two. P. W. 1 has denied the suggestion that the deceased had the Tabla M. O. I. with him and that he was attempt to kill the appellant with the Tabla, and that when the appellant snatched away the Table from the deceased to save his life it struck the deceased and injured him P. W. 2, the mother of the deceased, while supporting P. W. 1's version, has stated in her evidence that at the material time while the deceased was warming himself by sitting near the burning hearth on the verandah, the appellant came with a Tabla, M. O. I. in and dealt blows on the deceased on his head, neck and shoulders thereby causing the death of the deceased on the spot. In cross-examination P. W. 2 had stated that the Tabla was in the house of the deceased before the occurrence. Her further version is that the occurrence preceded the quarrel between the appellant and the deceased, and that in course of such quarrel both the appellant and the deceased fought with each other. The evidence of P. Ws. 1 and 2 the eyewitnesses to the occurrence would thus clearly indicate that although on the spur of the moment the appellant dealt several blows by means of M. O. I. to the deceased, there does not appear to have been any premeditation for the murder or any prior design or plan to do away with the life of the deceased. The incident took place, as spoken to by P. Ws. 1 and 2, rather suddenly in course of mutual scuffle (Marpit) between the appellant and the deceased. The question is, whether in such a situation the fourth exception to S. 300. IPC, the applicability of which is urged by the learned counsel for the appellant, can be said to be available to the appellant. 1 and 2, rather suddenly in course of mutual scuffle (Marpit) between the appellant and the deceased. The question is, whether in such a situation the fourth exception to S. 300. IPC, the applicability of which is urged by the learned counsel for the appellant, can be said to be available to the appellant. Exception 4 to S. 300, IPC may be extracted hereunder :"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 provocation or commits the test assault. "in a recent decision of the Supreme Court in the case of Surinder Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094 : (1989 Cri LJ 883) the question as to the applicability of exception (4) of S. 300, I. P. C. directly came up for consideration. Their Lordships have observed thus:-"to invoke Exception 4 to S. 300 four requirements nest be satisfied namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel a person in the heat of the moment picks up a weapon which proves fatal he would be entitled to the benefit of this exception provided he has not acted cruelly. Of course the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel a person in the heat of the moment picks up a weapon which proves fatal he would be entitled to the benefit of this exception provided he has not acted cruelly. Thus where in a case of quarrel between the deceased and the accused regarding possession of premises, it was to infer from the facts that the deceased must have intervened on the side of his brother and in the course of the scuffle he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to S. 300. Merely because three injuries were caused to the deceased during the scuffle it could not be said that he had acted in a cruel and unusual manner. Under such circumstances, the accused could be convicted u/s. 304, Part I. (Typed from the Headnote)the ratio of the decision appears to be that the cause of' the quarrel is not relevant, nor is it relevant as to who offered the provocation or started assault and the number of wounds caused during the occurrence is also not decisive, but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. From the facts of the instant case, which is very short and simple, judged in the legal perspective enunciated in the aforesaid decision, we find that both the appellant and the deceased were brothers and that they did not have any prior enmity. On the other hand, both were in visiting terms with each other. The appellant had spent some money for the treatment of the deceased, and he was constantly asking the deceased to repay the amount and the deceased was deferring the payment. It also transpires from the evidence of P. Ws. 1 and 2 that there was quarrel and scuffle between the appellant and the deceased immediately prior to the assault by the appellant by means of M. O. I. These incidents which have been clearly brought about in the evidence of natural witnesses like the wife and mother of the deceased are to he accepted for proper appreciation of the case. The sequence of events and the manner in which the incident took place, according to us would clearly indicate that the appellant had absolutely no pre-meditation to hit the deceased by the Tabla, M. O. I. and to do away with his life. The assault appears to have taken place rather suddenly and on the spur of the moment. According to P. W. 2, M. O. I was in the house of the deceased prior to the incident. This would go to show that the appellant did not bring M. O. I. from his house with a view to inflict injury on the person of the deceased. On the other hand, it would appear that as the appellant came and confronted the deceased there was quarrel over refund of money and this was followed by scuffle and marpit between both of them. The quarrel and marpit appear to have aroused anger in the mind of the appellant and this anger appears to have prompted him to pick up the Tabla and deal successive blows on the deceased. To doubt, six blows were dealt by, the appellant on the deceased, but in the situation the appellant cannot be said to have acted in a cruel or unusual manner. The blows dealt by the appellant was so quick in succession that he could not possibly be conscious as to how many blows he was delivering on the deceased. On the aforesaid analysis, we are of the view that the appellant cannot be said to have committed the offence of murder as defined u/s. 300. IPC. On the other hand, he would be guilty of' culpable homicide not amounting to murder and be punishable u/s. 304, Part I, IPC. ( 8 ) THE other items of evidence relied upon by the learned trial Judge in para 5 of the judgment namely, extra judicial confession of the appellant before P. W. 4, seizure of Tabla, M. O. I. and the wearing Dhoti of the appellant M. O. II) and the report of the Chemical Examiner that M. O. I contained human blood and the evidence of P. Ws. 3 and 4 that they were told about the incident by P. Ws. 3 and 4 that they were told about the incident by P. Ws. 1 and 2 immediately after the occurrence have been well-discussed, and we are in agreement with the reasoning of the learned trial Judge for acceptance of those circumstances as lending assurance to the ocular testimony of the eye-witnesses. P. Ws. 1 and 2, to prove the guilt of the appellant. Relying, therefore, on the authority of the Apex Court in the case of State of Karnataka v. Hemareddy, AIR 1981 SC 1417 : (1981 Cri LJ 1019), we do not propose to repeat the narration of the evidence or to reiterate the reasons given by the trial court. We agree with the finding of the learned trial Judge that the appellant is responsible for causing the death of the deceased. ( 9 ) FOR the reasons discussed in the preceding paragraphs, we find while agreeing with the learned trial Judge that the appellant is responsible for causing the death of the deceased, but for the reasons stated, we hold that the appellant is guilty of culpable homicide not amounting to murder and as such liable to conviction u/s. 304, Part I, IPC. Accordingly, we modify the conviction and sentence passed by the learned trial Judge and convert the conviction u/s. 302, IPC to S. 304, Part-I, IPC and sentence the appellant to seven years' rigorous imprisonment. In the facts and circumstances of the case, the conviction and sentence u/s. 449, IPC are set aside. ( 10 ) IN the result, the appeal is dismissed with the modification in the conviction and sentence as indicated above. ( 11 ) D. P. MOHAPATRA, J. : -. I agree. Order accordingly.