Judgment :- Arijit Pasayat, C.J. Questioning his conviction made for the alleged commission of offence punishable under Ss.302 and 324 of the Indian Penal Code, 1860 (in short, "IPC") this appeal has been filed by the appellant (hereinafter referred to as "accused" ). The learned First Additional Sessions Judge, Palakkad District (hereinafter referred to as "trial judge") found him guilty and sentenced him to undergo imprisonment for life and one year respectively for the aforesaid offences. 2. Background facts as projected by the prosecution are essentially as follows: Rajappan (hereinafter referred to as "deceased") was the owner of Sri Dharmasasthra Cinema Theatre situated at Karudikkad in Pudussery West Village in Palakkad Taluk. On 26.4.1994 accused Mani went there for first movie show. At about 7.30 pm, there was power cut in the cinema hall. Accused Mani insisted that the deceased should issue him and some other persons passes to witness the film later. The request was accepted by the deceased. When accused Mani reached near gate of the Cinema hall compound, power supply was restored. He returned to the theatre to see the film, but deceased did not permit him and asked him to come back later, for the second show or on any other day. Accused insisted to see the film and there was exchange of words between accused and deceased. On hearing the quarrel inside the theatre compound, wife of the deceased ask him to come to the house, which deceased did. The house which is situated nearby the Cinema hall. In the meantime, quarrel and scuffle occurred between accused Mani and employees of the deceased. Accused made a complaint that he lost his money in the scuffle and went to the house of deceased to get back the same. Deceased asked him to go away as he was not prepared to hear the complaint about the scuffle which occurred in the theatre premises. He told the accused that he will be coming to the theatre after some, time, and there the matter can be discussed. Later at about 9.30 p.m. first show was over and deceased went to the theatre premises again. At that time, accused Mani entered the theatre compound through the main gate and there was exchange of words which led to push and pull. Suddenly, accused took out a knife from his waist, and inflicted injuries on the abdomen and chest of the deceased. At that time, accused Mani entered the theatre compound through the main gate and there was exchange of words which led to push and pull. Suddenly, accused took out a knife from his waist, and inflicted injuries on the abdomen and chest of the deceased. One Velayudhan prevented the accused from inflicting injuries, and he also sustained injuries. Deceased was taken to Government District Hospital, Palakkad. Doctor examined him and declared that he was already dead. Velayudhan was also given treatment. Information was lodged with the police from the hospital and investigation was undertaken. During investigation it transpired that one Gangadharan had also a role in the unfortunate incident. Therefore, both accused Mani and Gangadharan were put to trial for the alleged commission of the offences punishable under S.302,307 r/w. 34 IPC. Learned trial judge came to the conclusion that guilt was established against accused Mani in respect of offences punishable under Ss.302 and 324 IPC. But he acquitted Gangadharan as his involvement was not successfully proved. Accused Mani was convicted and sentenced as aforesaid. 3. In support of the appeal, learned counsel for the accused submitted' that there was no independent witness to corroborate the version of the prosecution. In any event, the scenario as depicted rules out the application of S.302 IPC as the alleged incident occurred in the course of a sudden quarrel and the accused did not act in a cruel manner and also did not take advantage of the helplessness of the deceased. According to him act of accused is covered by Exception 4 to S.300 IPC. Learned. counsel for the State supported conclusions and findings of learned trial judge. 4. Fourth Exception covers acts done in a sudder 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 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 mens' sober reason and urges them to deeds which they would not otherwise do. There is provocation in Fourth Exception as in the First Exception, but the injury done is not the direct consequence of that provocation. There is provocation in Fourth Exception as in the First Exception, but the injury done is not the direct consequence of that provocation. In fact, the First 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 guilt upon an equal footing. For 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 First Exception. The position of combatants under Fourth Exception is, in short, this. There is no previous deliberation of determination of 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 unprecedented fight, both the accused and the deceased caused injuries to each other with weapons which they were carrying with them, the application of Fourth Exception will be attracted. 4(a) 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 an 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 Fourth Exception, S.300 IPC were fulfilled. The offence committed by the accused would be culpable homicide not amounting to murder and punishable under S.304 IPC. 5. The offence committed by the accused would be culpable homicide not amounting to murder and punishable under S.304 IPC. 5. The help of this exception can be invoked 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 Fourth Exception, 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 c acted in a cruel or unusual manner. Where the prosecution evidence does not justify the inference that there was an sudden fight and the appellant certainly acted in a cruel manner and least that can t said is that he took undue advantage of the deceased, there is no justification for applying Fourth Exception to S.300, the appellant's case. So long as the fight is unpremediated and sudden, the accused irrespective of 1 conduct before the fight earns the mitigation provided for in the Fourth Exception to S.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 Fourth Exception to S.300IPC is not defined in the IPC. It takes two 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. 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 neither 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 shall 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 instruments 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, 8C & P 115). 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, 8C & P 115). If you see that a person denotes by the manner in which he avenges a previous blow, that 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. 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&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". 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 Fourth Exception is, whether or not the accused shows, since the onus is on him, under S.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 persons picks up a knife and stabs another in the stomatch 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. Fourth Exception to S.300 cannot be applied in such a case. (See: Sunnumuduli v. Emperor, AIR 1947 Pat. 168). 6. In view of the factual position as highlighted above, we are of the opinion that Fourth Exception to S.300 IPC applies and the case is not encompassed by S.302 IPC. Accordingly, we alter the conviction to Part II of S.304 IPC. So far as the sentence is concerned, eight years rigorous imprisonment will meet the ends of justice. So far as the conviction under S.324 IPC is concerned we feel that the finding of the learned trial judge does not suffer from any infirmity to warrant interference. The sentence imposed for the said offence is maintained. Both the sentence shall run concurrently. The appeal is allowed to the extent indicated above.