Judgment :- ARIJIT PASAYAT, C.J. Judgment of conviction and sentence passed by learned Additional Sessions Judge, Kottayam is under challenge in this appeal by Ramachandran (hereinafter referred to as 'accused'). Learned trial Judge found him guilty of offence punishable under section 302 of Indian Penal Code, 1860 (in short 'I.P.C.'), convicted and sentenced to undergo imprisonment for life. 2. In a nutshell, prosecution case runs as follows : On 11-7-1994, Bhaskaran (hereinafter referred to 'the deceased') came to the toddy shop of Mamachan (PW-7) and was drinking toddy when accused came there and ordered for a glass of toddy. He picked up a quarrel with the deceased. PW-7 intervened and asked them to disburse and accused went out of the shop and on directions of PW-7 deceased remained in the shop for some time and left thereafter. Accused and deceased are residents of Eruthuvapuzha Vettavar colony. They proceeded to their colony through Eruthuvapuzha Erumely road and from Eruthuvapuzha junction, they had to go through Eruthvapuzha - Keerithodu mud road. Ration shop of Devasiachen (PW-6) and the shop of Vasu (PW-2) are situated to south of Eruthupuzha - Erumeli road. House of Baby, father-in-law of Joseph (PW-3) is also situated nearby. At about 6 p.m. accused was found being beaten by deceased and when they reached opposite to the house of Baby, PW-3 was talking with Baby in front of their house and Baby asked accused and deceased not to quarrel and go to their houses and thereafter deceased went ahead of accused through Keerithodu road. When he reached near Eruthuvapuzha north post office building, accused took out a knife and stabbed deceased. He fell down on the mud road. Accused sat on his body and stabbed several times and ran away. This occurrence was witnessed by P.Ws 2, 3 and 4. PW-1 was the District President of their community and also a resident of their colony. On being informed that deceased was lying with stab injuries, he ran to the spot, hired a jeep and took him to the Primary Health Centre, Erumeli, PW-9, the doctor, on examination found that deceased has breathed his last. Information was lodged by PW-1 at Erumeli Police Station. Investigation was undertaken and on completion of investigation, charge-sheet was laid. During trial, 15 witnesses were examined to prove prosecution case. Accused did not adduce any evidence. Information was lodged by PW-1 at Erumeli Police Station. Investigation was undertaken and on completion of investigation, charge-sheet was laid. During trial, 15 witnesses were examined to prove prosecution case. Accused did not adduce any evidence. He pleaded that incident happened on a sudden quarrel between him and deceased. Plea of grave provocation was advanced during trial and it did not find favour. In addition, right to exercise of private defence was also pleaded. Disbelieving the plea relating to sudden provocation and right to exercise of private defence, learned trial Judge found accused guilty, convicted and sentenced as aforesaid. 3. In support of the appeal, learned counsel submitted that prosecution version was full of contradiction and evidence of the so-called eye witnesses is not cogent and credible. Additionally it is submitted that plea relating to exercise of private defence has been discarded without proper appreciation of factual aspects. It is also submitted that alternative plea of accused relating to sudden provocation was not considered in its proper perspective. In any event, it is submitted that factual backdrop, as projected by prosecution, established that occurrence took place in course of a sudden quarrel. Therefore, conviction under section 302, I.P.C. is not warranted. Learned counsel for State submitted that grounds pleaded have been duly considered by learned trial Judge and rightly discarded. So far as acceptability of evidence tendered by eye witnesses, PWs 2, 3 and 4 is concerned, there is no infirmity therein to warrant rejection. According to him, learned trial Judge has rightly relied upon their evidence. 4. Plea relating to right of private defence was not seriously pursued. It is, however, urged strenuously that a case under Section 302, I.P.C. is not made out as occurrence took place in the course of a sudden quarrel. It is covered by exception 4 to Section 300, I.P.C. 5. Fourth exception covers Acts done in a sudden fight. This exception deals with a case of provocation 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 the absence of premeditation but while in the one case there is total deprivation of self-control, in the other there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. The exception is founded upon the same principle for in both there is the absence of premeditation but while in the one case there is total deprivation of self-control, in the other 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 this case as in the first exception, but the injury done is not the direct consequence of that provocation. In fact, the present exception 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 guilty upon an equal footing. For, a 'sudden fight' implies mutual provocation an 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 I. The position of combatants under Exception 4 is, in short, this. There is no previous deliberation of determination to fight. A fight suddenly takes place, for which both parties are more or less to blame. 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. They are, therefore, both equally liable. Where, therefore, during a sudden and unpremeditated fight, both the accused and the deceased caused injuries to each other with weapons which they were carrying with them, the application of Exception 4 will be attracted. They are, therefore, both equally liable. Where, therefore, during a sudden and unpremeditated fight, both the accused and the deceased caused injuries to each other with weapons which they were carrying with them, the application of Exception 4 will be attracted. Where the accused gives a fatal blow without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and there is no evidence that the accused took any undue advantage or acted in a cruel or unusual manner but merely gave a single stroke on the head of the deceased which ultimately proved fatal, and he did not go on assaulting the deceased despite his falling down unconscious on the ground in a given case, it can be held that all the elements of Exception 4, S. 300, I.P.C. were fulfilled. The offence committed by the accused would be culpable homicide not amounting to murder and punishable under Section 304, I.P.C. 6. The help of this exception can be invoked if and only 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 this exception all the ingredients mentioned in it must be found. In order to bring cases within the ambit of Exception 4, every one of the ingredients mentioned in this exception has to be proved. It has to be proved : (i) that it was committed without premeditation; (ii) that it was committed in a sudden fight; (iii) that it was committed in the heat of passion; (iv) that it was committed upon a sudden quarrel; and (v) that it was committed without the offender having taken undue advantage or acted in a cruel or unusual manner. Where the prosecution evidence does not justify the inference that there was any sudden fight and the appellant certainly acted in a cruel manner and least that can be said is that he took undue advantage of the deceased, there is no justification for applying Exception 4 to Section 300 the appellant's case. Where the prosecution evidence does not justify the inference that there was any sudden fight and the appellant certainly acted in a cruel manner and least that can be said is that he took undue advantage of the deceased, there is no justification for applying Exception 4 to Section 300 the appellant's case. So long as the fight is unpremeditated and sudden, the accused, irrespective of his conduct before the fight earns the mitigation provided for in the Exception 4 to Section 300 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 ? The term 'fight' occurring in Exception 4 to Section 300, I.P.C. is not defined in the I.P.C. It takes two to make a fight. In order to constitute a fight it is necessary that the blows should be exchanged and it is not necessary that weapon should be used. 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. The fight, as the nature of the injuries in both sides would show, appears to be on equal terms. In fact, if after exchange of blows on equal terms one of the parties without any such intention at the commencement of the affray snatches a deadly weapon and kills the other party with it, such a killing will be only manslaughter. But if a party under colour of fighting, upon equal terms, uses from the beginning of the contest a deadly weapon without the knowledge of the other party and kills the other party with such weapon, or if, at the beginning of the contest, he prepares deadly weapon so as to have the power of using it at some part of the contest and uses it accordingly in the course of the combat, and kills the other party with the weapon, the killing in both these cases will be murder. When two men suddenly engage in a fight the death of one of them is not the most natural or inevitable result nor it can be said that either of them desires the end of the other. In the first place, then, there should be no premeditation. When two men suddenly engage in a fight the death of one of them is not the most natural or inevitable result nor it can be said that either of them desires the end of the other. In the first place, then, there should be no premeditation. However, it is not perhaps possible to enunciate any general rule as to what shell be deemed to be 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. But as Parke B. told the jury : 'If a person receives a blow, and immediately avenges it with any instrument that he may happen to have in his hand, then the offence will be only manslaughter, provided the blow is to be attributed to the passion of anger arising from that previous provocation; for anger is a passion to which good and bad men are both subject. But the law requires two things first, 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. (see : Kirkham, 8 C and P. 115). If you see that a person denotes by the manner in which he avenges a previous blow, that he is not excited by a sudden transport of passion, but under the influence of that wicked disposition, that bad spirit which the law terms 'malice' in the definition of wilful murder, then the offence would not be manslaughter. Suppose, for instance, a blow were given and the party struck beat the other's head to pieces by continued cruel and repeated blows, then you could not attribute that Act to the passion of anger, and the offence would be murder. Suppose, for instance, a blow were given and the party struck beat the other's head to pieces by continued cruel and repeated blows, then you could not attribute that Act to the passion of anger, and the offence would be murder. And so if you find that before the stroke is given, there is a determination to punish any man who gives a blow, with such an instrument as the one which the prisoner used, because if you are satisfied that before the blow was given the prisoner meant to give a wound with such an instrument, it is impossible to attribute the giving of such wound to the passion of anger excited by that blow, for no man who was under proper feelings, none but a bad man of wicked and cruel disposing, would really determine beforehand to resent a blow with such an instrument. (see Thomas, 7 C and P. 817). So Lord Tenterden, C.J. said in another case : 'It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter, but it depends upon the time elapsing between the blow and the injury and also whether the injury was inflicted with an instrument at the moment in the possession of the party, or whether he went to fetch it from another place. If you think that there was no time and interval sufficient for the passion of a man proved to be of not very strong intellect to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter. But if you think that the act was the act of a wicked, malicious and diabolical mind, then you will find him guilty of murder.' (see : Lynch 5 Cr. & P. 324). The proper test of the applicability of this exception is, whether or not the accused shows, since the onus is on him, under section 105. Evidence Act, that he acted solely out of the provocation engendered by the heat of a sudden quarrel followed by a sudden fight. & P. 324). The proper test of the applicability of this exception is, whether or not the accused shows, since the onus is on him, under section 105. Evidence Act, that he acted solely out of the provocation engendered by the heat of a sudden quarrel followed by a sudden fight. The ordinary inference, where one person picks up a knife and stabs another in the stomach merely following an exchange of heated words, is that the attacker has acted out of some other motive as well as the provocation that may have been engendered by the verbal altercation. Exception 4 to Section 300 cannot be applied in such a case (see : Sunnumuduli v. Emperor, AIR 1947 Pat 168 : (1947 (48) Cri LJ 838). 7. The factual background of the case at hand clearly go to show that the occurrence took place in a course of sudden quarrel. The starting point seems to be attack by the deceased, who for all practical purposes was the aggressor. In our view, the case is covered under the Fourth Exception to Section 300, I.P.C. Conviction is altered from Section 302, I.P.C. to second limb of Section 304, I.P.C. Accused is sentenced to undergo rigorous imprisonment for eight years to meet ends of justice. Appeal is allowed to the extent indicated above. Appeal allowed.