JUDGMENT : A. Pasayat, J. - In this appeal from jail, Bipin Bhoi (hereinafter referred to as 'accused') calls in question legality of his conviction for an offence punishable under Section 302 of Indian Penal Code, 1860 (in short, 'IPC') and sentence of imprisonment for life as awarded by learned Sessions Judge, Sambalpur. 2. Binodini Bhoi (hereinafter referred to as 'deceased') lost her life in course of quarrel between her and the accused which occurred on account of collection of mahua seeds on 26.3.1991. Deceased and accused were related to each other, accused being paternal uncle of deceased. Grandfather of deceased had made a settlement of property in which half of trees standing thereon were given to the deceased and rest to the accused. Accused's father Sricharan Bhoi had certain properties which were locally known as 'Kudoguda'. Southern portion of the land was given to the deceased and the Northern portion was given to the accused. A few Mahua trees existed on the land. Deceased claimed that they were standing on her portion of land. There was quarrel on some earlier occasions between accused and deceased relating to collection of mahua flower from the trees standing on Kudoguda land. On the fateful day at about 5.45 a.m. deceased and her husband Balaram Bhoi (P.W.1) had gone to the land to collect mahua flower. After some time P.W.1 went to attend call of nature. At that time accused came to the spot and forbade deceased from collecting mahua flower. Exchange of hot words ensured, tempers rose and in the process, accused dealt blows on different parts of deceased body and she fell down. P.W.1 rushed to rescue his wife. She was shifted to her house where a private doctor was called to attend her. Since her condition was serious. She was shifted to Jharsuguda Government hospital where she breathed her last in spite of treatment. Information was lodged at the Jharsuguda P.S. and investigation was undertaken. On completion thereof charge-sheet was placed and after commitment the matter was taken up for trial by learned Seasons Judge. 3. Nineteen witnesses were examined to further the prosecution case. P.W.1 claimed to be eye witness to the occurrence, placing reliance on his evidence, learned trial Judge found the accused guilty and convicted him and awarded sentence as aforesaid. 4. In support of appeal, Mr. 3. Nineteen witnesses were examined to further the prosecution case. P.W.1 claimed to be eye witness to the occurrence, placing reliance on his evidence, learned trial Judge found the accused guilty and convicted him and awarded sentence as aforesaid. 4. In support of appeal, Mr. B.B. Singh, learned counsel for accused-appellant urged that only on the basis of testimony of the husband, learned trial Judge ought not to have recorded order of conviction. Alternatively it was pleaded that prosecution version is to the effect that assaults were given in course of sudden quarrel, and therefore Section 302 IPC has no application. Learned counsel for State supported the judgment. 5. Undisputedly P.W.1 is the husband of deceased. Though there was hostility between the accused and deceased, that per se does not render evidence of P.W.1 vulnerable. Normally a relation would not shield the actual culprit and falsely implicate an innocent person. A foundation has to be laid if plea of false implication is made. Court in such matters has to adopt a careful approach and make deeper scrutiny of evidence to find out whether it is cogent and credible. In the case at hand, learned trial Judge has carefully analysed evidence of P.W.1 and found him to be a truthful witness. Therefore, learned Sessions Judge was justified in holding the accused guilty. 6. The residual and most vital question is whether Exception 4 of Section 300 IPC applied to the facts of the case Exception 4 to Section 300 covers acts done in a sudden fight. It deals with a case of provocation not covered by the Exception 1. The Exception is founded upon the same principle of absence of premeditation. The distinction is that while in Exception 1, there is total deprivation of self-control, in Exception 4 there is only that heat of passion which clouds a person's sober reason and leads to acts which would not have been otherwise committed. A sudden fight implies mutual provocation and postulates bilateral transaction in which both victim and assailant assault each other. In order to bring an application of Exception 4, the following essentials are to be established i.e. death was caused. (i) without premeditation (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel; and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. In order to bring an application of Exception 4, the following essentials are to be established i.e. death was caused. (i) without premeditation (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel; and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. In order to bring a case within this Exception all the ingredients must be found. So long as the fight is unpremeditated and sudden, the accused, irrespective of his conduct before the fights earns the mitigation provided for in the Exception 4 subject to the condition that he did not in the course of the fight take undue advantage or act in a cruel or unusual manner. Heat of passion requires that there must be no time for the passion to cool down. While considering whether the Exception is applicable to a given set of facts, the first test is not whether the killing was premeditated or not. The test is whether the act of an accused which caused the deceased's death was done without premeditation. The distinction is not to be ignored. Even if the killing is not premeditated, but if the act which causes the killing is premeditated, the Exception would not apply. It is to be noted that the term 'fight' occurring in Exception 4 is not defined in the IPC. It takes two to make a fight. In the first place, then, there should be no premeditation. To constitute a premeditated killing, it is necessary that the accused should have reflected with a view to determine whether he would kill or not, and that he should have determined to kill as the result of that reflection; that is to say, the killing should be a predetermined killing upon consideration and not a sudden killing under momentary excitement and impulse of passion upon provocation given at the time or so recently before as not to allow time for reflection. 7. The scenario as described by prosecution witnesses shows that assaults were made in course of sudden quarrel. Background facts clearly bring in application of Exception 4 of Section 300 to the facts of the present case. Accordingly, conviction under Section 302 IPC is altered and scaled down to second limb of Section 304, IPC. Considering background facts, eight years' custodial sentence would meet the ends of justice. 8. Background facts clearly bring in application of Exception 4 of Section 300 to the facts of the present case. Accordingly, conviction under Section 302 IPC is altered and scaled down to second limb of Section 304, IPC. Considering background facts, eight years' custodial sentence would meet the ends of justice. 8. The appeal is allowed to the extent indicated above. A. Deb, J. - I agree. Final Result : Allowed