JUDGMENT : A. Pasayat, J. - On the accusation of having committed homicidal death of Purusottam Sahu (hereinafter referred to as 'deceased') Nilakantha Das (hereinafter referred to as 'accused') faced trial, was found guilty, convicted for offence punishable under Section 302 of Indian Penal Code, 1860 (in short the I.P.C.), and sentenced to imprisonment for life. In this appeal from Jail, the judgment of conviction and sentence is assailed. 2. Accusations which led to trial of accused are essentially as follows: Deceased and accused belonged to village Kanchana. One Dhurba Ghosh had married daughter of deceased, and his house is in front of accused's house, being intervened by the village road. Deceased lived at a nearby place. On 28.1.1992 Dhurba made some objectionable comments to wife of the accused suggesting illicit sexual relationship, which was conveyed by her to the accused in the night. On hearing this, accused challenged Dhurba and rebuked him. Getting this information, deceased came there to pacify the accused. Getting enraged at the intervention, which accused thought to be unwarranted, he gave a blow with a crow-bar on the head as a result, deceased fell down unconscious. The crow-bar was snatched from the accused by Prafulla and Suresh, the two sons of deceased, examined as P.Ws.1 and 5 respectively, Aforesaid two sons of the deceased shifted him to Beguniapada Primary Health Centre and as his condition deteriorated, he was shifted to the M.K.C.G. Medical College and Hospital, Berhampur where he breathed his last on the night of 30.1.92. Information had been lodged by P.W. 1 at Kodala Police Station on 29.1.1992 and initially a case was registered for offence punishable under Section 326, I.P.C. Later on, getting information about the death, the case was turned to one under Section 302, I.P.C. Investigation was undertaken and on completion thereof charge-sheet was placed. 3. Accused pleaded innocence. He took the stand that since Dhurba had made some outrageous remarks to his wife, he wanted an explanation from Dhurba, in the evening Dhurba Ghosh went and called his father-in-law and brother-in-law, who came being armed with crow-bar and tried to assault him, over crow-bar, he did not know who else got injured. 4. Eleven witnesses were examined to further the prosecution case. 5. Placing reliance on the evidence of the eye witnesses, learned Second Addl. Sessions Judge, Ganjam-Barhampur found the accused guilty, and convicted and sentenced him as aforesaid. 4. Eleven witnesses were examined to further the prosecution case. 5. Placing reliance on the evidence of the eye witnesses, learned Second Addl. Sessions Judge, Ganjam-Barhampur found the accused guilty, and convicted and sentenced him as aforesaid. 6. Mrs. P. Nayak, learned counsel appearing for the accused challenged the conclusion arrived at by the learned Trail Judge to find the accused guilty. It was pointed out that the two witnesses, on whose version, prosecution relied, were sons of the deceased and were therefore, partisan. The background facts show involvement of their brother-in-law Dhurba Ghosh, because of whose indecent behaviour, there were exchanges of hot words. In fact P.Ws.1 and 5 and the deceased tried to assault the accused which resulted in some injuries. While he tried to save himself from the assaults which have been indiscriminately made by P.Ws.1 and 2 and deceased, some injuries might have been caused. The learned trial Judge should have accepted that the case is covered by Exception-4 to Section 300, I.P.C. and in any event a case under Section, 302 I.P.C. is not made out. 7. Learned counsel appearing for the State, on the other hand, supported the judgment of conviction and sentence. 8. It cannot be laid-down as a rule of universal application that whenever a person who is related to the deceased is examined as a witness, his version has to be viewed with suspicion. A relation is more often that not a truthful witness, who would not shield the actual culprit and falsely implicate an innocent person. However, where some hostility is pleaded, Court has to carefully consider the evidence and find out whether a truthful version has been presented by the concerned witness. In the case at hand apart from P.Ws.1 and 5, who are sons of the deceased. P.Ws.2 and 3 were examined to state about assault, made by the accused on the deceased. They are co-villagers and nothing has been brought on record to show as to why they shall falsely implicate the accused. In spite of thorough and incisive cross-examination, the substratum of their evidence has not been shaken to discredit their veracity. The learned trial Judge, therefore, has rightly placed reliance on the evidence of P.Ws. 1 to 3 and 5 about the assault on deceased by accused. In spite of thorough and incisive cross-examination, the substratum of their evidence has not been shaken to discredit their veracity. The learned trial Judge, therefore, has rightly placed reliance on the evidence of P.Ws. 1 to 3 and 5 about the assault on deceased by accused. So far as P.W.4 is concerned, he is stated to be the person whose indecent behaviour led to the fracas. In any event, much importance has not been attached to the evidence of P.W.4 observing that he might not have actually seen the assault. 9. It has been urged that in view of P.W.4's conduct the incident took place, and therefore, Exception-4 to Section 300, I.P.C. is clearly applicable. For application of the said exception, it has to be established that the act was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300, I.P.C. covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The exception is founded upon the same principle for in both there is absence of premeditation, but while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight, (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 302, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passion to cool down and in this case the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was no sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Considering the background facts as indicated above, the factual position does not show that there was any fight. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. Considering the background facts as indicated above, the factual position does not show that there was any fight. In fact the evidence of the eye witnesses is to the effect that the deceased assuage the hurt feelings of the accused, and tried to pacify him. Therefore, Exception 4 to Section 300, I.P.C. has no application to the facts of the case. 10. The residual question is whether the case is covered under Section 302, I.P.C. Clause thirdly, of Section 300 views the matter from a general stand point. It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on the sufficiency of the injury in the ordinary way of nature and when this exists and death ensues and the causing of such injury is intended, the offence is murder. The clause has two parts. The first part is a subjective one which indicates that the injury must be an intentional one, and not an accidental one; and the second part is objective one in the sense that looking at the injury intended to be caused, the Court must be satisfied that it was sufficient in the ordinary course of and separate. The sufficiency of an intentional injury to cause death in the ordinary way of nature is the gist of the clause, irrespective of an intention to cause death. Analysing the Clause, the Apex Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465 , which has become locus classicus, laid down that the prosecution must prove the following facts: (i) It must establish quite objectively that a bodily injury is present; (ii) The nature of the injury must be proved. Analysing the Clause, the Apex Court in Virsa Singh v. State of Punjab, AIR 1958 SC 465 , which has become locus classicus, laid down that the prosecution must prove the following facts: (i) It must establish quite objectively that a bodily injury is present; (ii) The nature of the injury must be proved. These are partly objective investigations; (iii) It must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended; Once these three elements are proved to be present, the enquiry proceeds further, and (iv) It must be proved that the injury of the type described made up the three elements set-out above is sufficient to cause death in, the ordinary course of nature. This part of the inquiry is purely objective. Once these four elements are established by the prosecution, the offence is murder under Section 300, Clause "thirdly". 11. It is pleaded that fact situation does not indicate that the particular bodily injury was intended. Only one blow was given, that too in a dark night with insufficient light. The weapon of assault was not being carried, and was picked up by the accused to give the blow. There is no probation that whenever a single blow is given resulting in death, Section 302, I.P.C. will not be applicable. Though the number of injuries is one of the circumstances which the Court was take into account for coming to a finding about the intention or knowledge of the offender, it is not the determinative factor. It would depend upon the facts and circumstances of each case. The nature of weapon used, background facts leading to the assault have to be kept in mind. In view of the fact situation described above, it would not be appropriate to apply Clause thirdly of Section 300, IPC. Consequentially, conviction under Section 302, IPC cannot be maintained. Conviction under Section 304, Par-II with custodial sentence of eight years would meet the ends of justice. Appeal is allowed to the extent indicated. S.C. Datta, J. - I agree. Final Result : Allowed