Judgment ( 1. ) IN this criminal appeal filed under Section 374 of the Code of Criminal procedure the appellant has challenged his conviction under Section 302 and 323 IPC and sentence of life imprisonment and fine of Rs. 500/ and rigorous imprisonment for six months, respectively by judgment dated 18-2-99 passed by sessions Judge Ashoknagar in Sessions Trial No. 151/98. ( 2. ) PROSECUTION story in nutshell as unfolded during trial is that on 31-3-98 Kashiram (PW 1) along with 5-6 persons was sitting on bus stand of village Gahora, P. S. Isagarh, district Guna. It was alleged that Mst. Sakhibai (PW 10), wife of appellant Gajraj Singh, had left him as he became patient of tuberculosis and had started living with Kashiram, who is elder brother of Gajraj singh, as his wife for about six years before the said incident. It was also alleged that one son named Vicky was born out of their cohabitation. After sometime sakhibai returned back to village Gahora with her son and again started living with appellant. Thereafter Kashiram started asking the appellant to return his son Vicky. On the date of incident the appellant came on the bus stand where kashiram was sitting and started abusing him and said that why he is making demand about return back of his son Vicky and appellant inflicted lathi blows on the head of Kashiram. On this Kashiram ran away towards the village. One kalyan Singh (PW 7) was coming on the motorcycle, who gave lift to Kashiram. When they were coming towards Isagarh, again the appellant alleged to have stopped them and inflicted two lathi blows on the person of Kashiram, which hit his left hand, finger and shoulder. At the same time the appellant lifted Vicky, who was present near the place of incident, and threw him on road and also inflicted one lathi blow to him. It was also stated that his neck was also pressed by appellant Gajraj Singh and because of that he died. Kashiram boarded in the bus and went to Police Station Isagarh to lodge the FIR Ex. P/l of the incident. The injured was also referred for medical examination and he was examined by Dr. G. P. Karoliya (PW 8) and as many as 7 injuries were found on the body of injured kashiram, though all the injuries were simple in nature. P/l of the incident. The injured was also referred for medical examination and he was examined by Dr. G. P. Karoliya (PW 8) and as many as 7 injuries were found on the body of injured kashiram, though all the injuries were simple in nature. Thereafter the dead body of the deceased, who was a boy aged 5 years, was referred for post-mortem, which was also conducted by Dr. Karoliya (PW 8 ). According to the opinion of the doctor, cause of death was asphyxia as a result of throttling. Thereafter, matter was investigated and chargesheet was filed. ( 3. ) DURING trial appellant abjured his guilt. His defence was that the deceased Vicky was his own son and he was not present on spot at the time of commission of crime. He was having enmity with his own brother Kashiram. He was pressurising him to compromise and when he refused, he has been implicated falsely. ( 4. ) TRIAL Court after considering the prosecution evidence found that it was the appellant, who not only threw the deceased but pressed his neck, gave lathi blow and the aforesaid act of the appellant is within the purview of committing murder of deceased Vicky, convicted and sentenced him as aforesaid, against which the appellant has preferred this appeal. ( 5. ) WE have heard Shri N. P. Dwivedi, learned Counsel for the appellant, Shri M. P. S. Bhadoriya, learned Public Prosecutor, for the respondent-State and we have also perused the evidence on record. ( 6. ) SHRI N. P. Dwivedi, learned Counsel for the appellant, at the outset submitted that even if the prosecution case is considered as it is, the case will not fall within the definition of Section 300 IPC and at the most the offence will fall under Section 304 Part II, IPC. Since the appellant is in custody w. e. f. 1-4-98 from the date of arrest and has suffered more than 8 years jail sentence, therefore, he be released on undergone jail sentence. In reply, Shri M. P. S. Bhadoriya, learned Public Prosecutor supported the judgment and submitted that it is a case of murder, which will fall under Section 302 IPC and prayed for the dismissal of the appeal. ( 7. ) WE have considered the prosecution case as well as the evidence of the witness and the findings recorded by the Court below. ( 8. ( 7. ) WE have considered the prosecution case as well as the evidence of the witness and the findings recorded by the Court below. ( 8. ) RAMESH (PW 3), Udhamsingh (PW 4), Chandansingh (PW 5) and komal (PW 6) those who were sitting on the bus stand along with Kashiram, have not supported the prosecution and they were declared hostile. Sakhibai (PW 10), who is the mother of Vicky and wife of appellant, has also not supported the prosecution. Kalyan Singh (PW 7) has stated that he had seen that kashiram was bleeding from his head and he came on his motorcycle to the house of appellant Gajraj Singh where he had lifted him and went to Isagarh and kashiram had informed him that he was beaten by Gajju. Thereafter, in the evening he came to know that the son of Gajju has died. Devilal (PW 2) was also sitting on the bus stand along with cither persons. He had seen that Gajju came and gave lathi blows on the head of Kashiram. He had tried to intervene in this incident. Thereafter Kashiram went towards the village and Gajraj Singh had lifted one boy of 4-5 years and had thrown him on the road. Thereafter Kashiram again came on the motorcycle and he went to Isagarh in a bus. In the cross-examination he has clarified that deceased was thrown on the road. The appellant caught hold the legs of the deceased and threw him on the road. Vijay kumar Sharma (PW 9) has stated that he was also present on the bus stand at the time of incident and he has deposed that Kashiram was sitting on the bus stand; gajraj Singh came and inflicted lathi blow on the head of Kashiram and thereafter Kashiram went towards the village and when Kashiram again came on motorcycle, the appellant again inflicted 2-3 lathi blows on the body of Kashiram and thereafter he picked up Vicky and threw him on road and he also pressed his neck. Thereafter, Sakhibai came and took him from the spot. ( 9. ) KASHIRAM (PW 1), who is the elder brother of the appellant, has stated the genesis of the incident. Thereafter, Sakhibai came and took him from the spot. ( 9. ) KASHIRAM (PW 1), who is the elder brother of the appellant, has stated the genesis of the incident. He has deposed that Sakhibai wife of Gajraj singh was residing with him, as Gajraj Singh was the patient of Tuberculosis and out of the said cohabitation one son Vicky born and Vicky was his son born from sakhibai and when she started living with his brother and her husband along with vicky, he was regularly demanding his son from the appellant and appellant was also refusing to give him; it was the cause of incident and on account of the aforesaid reason some quarrel took place between him and Gajraj Singh and during that quarrel Gajraj Singh picked up deceased Vicky and threw him on road and also inflicted lathi blows which resulted into death of Vicky. Though sakhibai (PW 10), who is the mother of deceased, has denied the entire incident that the deceased was the son of Kashiram and born out of their relations and cohabitation or that the appellant is a patient of tuberculosis. According to her vicky is her son and was also the son of the appellant. ( 10. ) DR. G. P. Karoliya (PW 8), who had performed postmortem, has stated that the deceased died because of injury No. 5. The cause of death was asphyxia because of throttling. From the medical evidence it is clear that the deceased died because of homicidal death. Though there is no opinion given by the doctor that the said injury on the neck was responsible for causing death in the ordinary courts of nature but since the cause of death was asphyxia due to throttling, it can be held that the deceased died because of homicidal death. ( 11. ) IN the light of the aforesaid evidence, learned Counsel for the appellant vehemently argued that it was a case of sudden incident between the parties out of provocation and there is no evidence of premeditation. No evidence of motive or intention is present on record. Therefore, the case will fall under Section 302 IPC. ( 11. ) IN the light of the aforesaid evidence, learned Counsel for the appellant vehemently argued that it was a case of sudden incident between the parties out of provocation and there is no evidence of premeditation. No evidence of motive or intention is present on record. Therefore, the case will fall under Section 302 IPC. For that he placed reliance on the decisions in the cases of Sarabjeet Singh and others vs. State of U. P. , reported in (1984) 1 SCC 673 ; thankachan vs. State of Kerala; reported in 2005 (3) Crimes 255 (SC); and, also on the decision in the case of Ravi Kumar vs. State of Punjab, reported in 2005 (1) Crimes 373 (SC ). ( 12. ) IN the case of Sarabjeet Singh (supra), it was held that under the similar facts and circumstances that the accused lifted infant Radhey Shyam bodily and threw him with some force on the ground. It was the prosecution case that Radhey Shyam suffered some internal injuries and vomited blood and soon fell into coma. Under the aforesaid facts it was considered that the case will fall under Section 299 IPC- culpable homicide not amounting to murder and it was also held that obviously the first part of Section 300 will not be attracted because it could not be said that the act of accused, which caused death, was done with intention of causing death. It was also held that the accused had no grievance against an innocent child. The dispute was with Ghirau. It was also considered that even if accused had some malice against Ghirau, it was not possible to treat that malice transferred to Radhey Shyam. It was also held that primarily in any action taken by the criminal, his state of mind is very relevant. The state of mind may either disclose intention or knowledge and that is a very relevant factor. It is equally true that these are a bit illusory factors to be deduced from surrounding circumstances such as the genesis of the occurrence, the motive, the weapon used, the seat of injury, the ferocity of the attack, etc. It is also equally true that every grown-up man is presumed to know the natural and probable consequence of his own act. This is undeniable. It is also equally true that every grown-up man is presumed to know the natural and probable consequence of his own act. This is undeniable. Therefore, it is necessary to find out whether when accused lifted the boy and threw him on the ground, did he intend to cause any particular injury as envisaged by third part of Section 300. And the second question which stares into face is whether the intended injury was caused and it was shown in the ordinary course of nature to cause death and the Court further held that the necessary intention to cause death of the deceased was absent in this case. Even if the accused had some malice against the deceaseds father, there was no malice against the deceased. ( 13. ) IN case of Ravi Kumar (supra), a quarrel had taken place between hans Raj and accused Ravi Kumar when the talks were going on, accused Ravi kumar picked up the Dhang placed behind Gandharav Singh and gave two blows on the head of deceased and next day the deceased died. In these facts and circumstances, the Supreme Court has held as under:- "21. The Fourth Exception of Section 300 IPC 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 mens 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. 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 blaimeed. 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 offenders 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" concurring in exception 4 to Section 300 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 passions 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 no 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 a 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". ( 14. For the application of Exception 4, it is not sufficient to show that there was a 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". ( 14. ) IN case of Thankachan (supra), under the facts that where accused was quarreling with his wife, inflicted injuries by chopper on back of left leg below knee of deceased son, who tried to intervene to save his mother and the death was on account of excessive bleeding, it was held that the offence would fall under Section 304 Part II IPC and not under Section 302. ( 15. ) IF we consider the case in hand on the proposition of the aforesaid case law cited by the learned Counsel for the appellant, we find that though kashiram (PW 1), who is elder brother of the appellant, was claiming fathership of deceased Vicky and his contention was that he born from Sakhibai out of their cohabitation. It is established rule that maternity is a fact but paternity is a fiction. Though Kashiram has stated that he made efforts to take back his child from appellant, but appellant Gajraj Singh was denying and was not handing over the custody of the child to him and if we consider this aspect of the matter that Vicky (deceased) was not the real son born from Gajraj Singh and that is the reason why he picked up him and threw him on the road or pressed his neck and he died but so far as the question of pressing the neck of the deceased is concerned, there is no other evidence on record. Even Kashiram has not stated that it was the appellant who pressed his neck. Vijay Kumar Sharma (PW 9)though has stated that the neck was pressed by the appellant, but his statement was recorded after 9 days. Therefore, there is no positive evidence on record to prove this fact that how the deceased received injury on the neck and how he has received injury by throttling. Vijay Kumar Sharma (PW 9)though has stated that the neck was pressed by the appellant, but his statement was recorded after 9 days. Therefore, there is no positive evidence on record to prove this fact that how the deceased received injury on the neck and how he has received injury by throttling. If Kashiram was demanding the custody of the child and the appellant was denying and the provocation took place between them on account of demand of child, this very fact leads towards this conclusion that the appellant was not willing to hand over the child to Kashiram, who is his own elder brother. Sakhibai (PW 10) mother of the deceased and wife of the appellant, has denied this fact in his statement that she was having any relation with Kashiram or out of their cohabitation Vicky (deceased) was born. Therefore, in such circumstances, it can be held that the incident took place suddenly out of provocation or anguish. Kashiram (PW 1) was also beaten by the deceased. If the appellant was knowing this fact that he is his son or born by the cohabitation of Kashiram, he would have easily parted the custody of his son to Kashiram but since he was not willing to hand over the custody, the incident took place. We do not find that any evidence of premeditation is available in the case. If Gajraj singh was having any intention to kill Vicky, he could have assassinated him earlier in any manner when he was residing with him. We also do not find that any evidence of motive or intention or malice is available on record. Thus, it can be safely held that the case will fall under the definition of culpable homicide as defined under Section 299 and will not fall under Section 300 or 302 IPC. ( 16. ) THUS, considering the totality of the facts and circumstances of the case, the conviction of the appellant under Section 302 is set aside and instead he is convicted under Section 304 Part II, IPC. The appellant has already suffered jail sentence of more than 8 years, which appears to be sufficient, therefore, he is entitled to be released on undergone jail sentence. So far as his conviction under Section 323 IPC is concerned, the same cannot be maintained, as no specific charge under Section 323 IPC was framed against him. The appellant has already suffered jail sentence of more than 8 years, which appears to be sufficient, therefore, he is entitled to be released on undergone jail sentence. So far as his conviction under Section 323 IPC is concerned, the same cannot be maintained, as no specific charge under Section 323 IPC was framed against him. This being distinct offence it was the duty of the Trial Court to have framed specific charge. Accordingly, the appellant is acquitted from the charge under Section 323 IPC for the injuries caused to Kashiram. ( 17. ) CONSEQUENTLY, this appeal is partly allowed. Conviction of appellant is reduced from Section 302 to Section 304 Part II, IPC and he is sentenced to already undergone jail sentence. His conviction under Section 323, IPC is set aside and he is acquitted from the said charge. He is in jail; he be released forthwith, if not required in any other case. Criminal Appeal partly allowed.