JUDGMENT P.G. Agarwal, J. 1. Heard Mr. M.R. Pathak, the learned counsel for the appellant and Mr. P. Bora, the learned P.P. 2. The appellant before us was tried by the Sessions Judge, Tinsukia in Sessions Case No. 154 (T)/92 (GR Case No. 565/92) for the commission of offence under Section 302, IPC and on conclusion of the trial, he was convicted under Section 302, IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 5000/- in default further imprisonment for two years. Hence, the present appeal. 3. The prosecution allegation in short is that the accused-appellant Jolen Sober and the deceased Mangua Paharia are both employees of Dinjan Tea Estate and residing in Dighlijan Labour Line. As a matter of fact, both were also next-door neighbours sharing two parts of the same house. On the ill-fated day on 20-4-92 when the wife of the deceased was waiting for her husband, the accused and the wife of the deceased had some altercation and when the deceased husband returned back, the wife of the deceased complained the matter. Thereafter the deceased intervened and assaulted the accused. After some time the accused entered into his house and brought out a dao and hacked the deceased to death. 4. Dr. M. N. Gogoi (PW-8) held the autopsy over the dead body and found the following injuries on the person of the deceased:- "Injuries :- (1) One clean cut incise wound in the lower front right side of the neck of size 10 cm x 3 cm x 6 cm deep, cutting the skin, muscles, blood vessels, nerves in that area. (2) One incised wound in the left thumb cutting it completely and missing from the body." 5. In the opinion of the doctor, the death was due to shock and haemorrhage as a result of the ante-mortem injury caused by heavy sharp cutting weapon. The injury was sufficient to cause death in the ordinary course of nature and it was homicidal in nature. The witness was not cross-examined which goes to show that the medical evidence was not challenged. 6. The entire prosecution story rests on the testimony of the sole eye witness Smt. Birju Paharia (PW-1), widow of the deceased. She has fully supported the prosecution version of the incident as stated above. The witness was not cross-examined which goes to show that the medical evidence was not challenged. 6. The entire prosecution story rests on the testimony of the sole eye witness Smt. Birju Paharia (PW-1), widow of the deceased. She has fully supported the prosecution version of the incident as stated above. The witness further stated that after the assault, she went out to inform the chowkidar of the garden. On the way she met Saban and her son Rajesh Paharia. PW-4 and PW-5 have reported about cutting of the deceased by the accused. PW-7 Rajesh Phukan lodged the ejahar and named the assailant. 7. PW-1 is an illiterate, unsophisticated tea garden woman and she has deposed as to what she had seen. We find that the accused was next door neighbour and the accused had some altercation with the wife of the deceased (PW-1). The witness has categorically denied the suggestion that she could not recognize the assailant. In cross-examination, the defence has failed to discredit her testimony in any manner. Her evidence stands corroborated by the other witnesses as well as medical evidence. The trial Court for the reasons mentioned in the petition has relied on the testimony of this witness. The incident had taken place in the courtyard of PW-1 and it was around 7/8 p.m. and hence, PW-1 was most natural witness. The incident had occurred between the two neighbours. Thus, this is not a case where the other eye witnesses are available and they have not been examined. 8. The law regarding basing conviction on the testimony of the sole eye witness was considered by the Apex Court in the case of Marwari Kishore Permanent v. State of Gujarat reported in. In view of the provisions of Section 134 of the Evidence Act, where sole eye witness is found wholly reliable, there is no impediment under the law to base conviction. On perusal of the evidence of PW-1 and other evidence on record, we hold that PW-1 is wholly reliable witness. The law laid down in Marwari Kishore (supra) was reiterated by the Apex Court in the case reported in. 9. In view of what has been stated above, we hold that it was the accused-appellant who killed the deceased. 10. On perusal of the evidence of PW-1 and other evidence on record, we hold that PW-1 is wholly reliable witness. The law laid down in Marwari Kishore (supra) was reiterated by the Apex Court in the case reported in. 9. In view of what has been stated above, we hold that it was the accused-appellant who killed the deceased. 10. The learned counsel for the appellant has submitted that the accused person has no intention to kill the deceased and the act of the accused falls under exception (4) to Section 300 IPC. The evidence on record shows that prior to the incident, there is an altercation leading to the assault between the accused and the deceased and thereafter, the accused went to his house and brought out dao and killed the deceased. It is submitted that the entire thing was because of a sudden fight without any premeditation and hence, there was no intention of killing. In this connection, the learned Counsel for the appellant has referred to a decision of the Apex Court in the case of Sukhbir Singh v. State of Haryana, reported in ( AIR 2002 SC 1168 ) wherein the Apex Court observed as follows:- "To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the Courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception." 11. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception." 11. In Sukhbir Singh (supra), the appellant was assaulted by the deceased whereupon the appellant went to his house and came armed in the company of others and assaulted the deceased causing his death. In the above case, the Apex Court held that it is, therefore, probable that there was no sufficient lapse of time between the quarrel and the fight, which means that the occurrence was "sudden" within the meaning of Exception 4 of Section 300 IPC. 12. Exception (1) of Section 300 IPC reads as follows :- "Culpable homicide is not murder if the offender, whilst deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident." Illustration (e) reads as follows :- "A attempts to pull Z's nose, Z in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence." 13. We, therefore, hold that the appellant is not entitled to benefits of exception (4) to Section 300IPC. 14. In view of the above, we find no merit in this appeal and the appeal is accordingly dismissed. Appeal dismissed