JUDGMENT Madan B. Lokur, C.J. 1. The Appellant is aggrieved by a judgment and sentence dated 23rd March, 2005 passed by the Sessions Judge, Tinsukia in Sessions Case No. 230(T)/2003. 2. A first information report was given on 28th March, 2002 by Biswajit Suna, younger brother of the Appellant to the effect that at about 5 a.m. the Appellant killed his (Appellant's) wife Deepali Suna by hacking her with a dao. 3. On the conclusion of investigations by the police, a charge sheet was filed against the Appellant and he was charged with having committed murder by intentionally causing the death of his wife Deepali Suna and thereby committed an offence punishable under Section 302 of the Indian Penal Code. The Appellant pleaded not guilty and claimed trial. 4. The prosecution examined as many as eight witnesses including the Investigating Officer. At the outset, it may be stated that none of the witnesses were eye witnesses and the evidence on record shows that all the material witnesses came to the place of occurrence after the murder had been committed. 5. P.W.1 Sri Sibu Chhatria is a neighbour of the Appellant. He came to the house of the Appellant on hearing some noise and when he went there, he found the wife of the Appellant lying dead in the courtyard with bleeding injuries. About 50/60 people had gathered at the scene of tine crime. The Appellant was found tied with a rope. On being questioned, the Appellant kept quiet about the crime. When the police came to the Appellant's house they seized a knife from there. P.W.1 Sibu Chhatria saw a cut wound on the neck of the deceased 6. P.W.2 is the younger brother of the Appellant and he also came to the house and saw the dead body of Deepali. According to him, the Appellant was standing at the door with a dao in his hand and when asked about the death of his wife, the Appellant kept mum. This witness took the weapon from the hand of the Appellant. On his request, the "garden people" tied the Appellant with a rope. When the police came subsequently, he handed over the weapon of offence to the police. 7. This witness took the weapon from the hand of the Appellant. On his request, the "garden people" tied the Appellant with a rope. When the police came subsequently, he handed over the weapon of offence to the police. 7. P.W.3 Sri Karam Singh is the uncle of the Appellant and he also came to the scene of the crime after Deepali was killed and he saw her dead body lying in the verandah. He also noticed one cut wound on her neck. This witness was a signatory to the seizure memo when the police seized the knife used by the Appellant to commit the murder. 8. P.W.4 Riaz ali does not add anything substantial to the case through his testimony. 9. P.W.5 Anjali Sona is the younger sister of the Appellant. She had turned hostile during her examination and denied that she had informed the police that she saw the Appellant giving a dao blow on the body of his wife Deepali. 10. P.W.6 is the doctor who examined the dead body of Deepali and the injuries suffered by her are described by him in the following words: (1) One cut injury on lower part of the neck on the back side and part of left side of the neck cutting the 7th cervical vertebrae with corresponding spinal cord, esophagus, trachea, jugular and carotid vessels On the left side and muscles of the neck at site and the cut wound was in one thrash. Blood clots were found adherent to the wound. There were no other injuries found on any other parts of the body. Stomach was found empty. Heart chambers were also found empty. 11. A perusal of the opinion given by the doctor shows that a very severe blow was inflicted on the neck of Deepali which almost severed her head from her body. According to the doctor, the death of Deepali was caused instantaneously and was caused by a heavy sharp cutting weapon. 12. P.W.7 is the Magistrate who recorded the confessional statement given by the Appellant. According to this witness, the Appellant had given the confessional statement voluntarily and he had been given sufficient time of about four hours to reflect before making the confessional statement. 13. The Investigating Officer was examined as P.W.8 and he generally supported the case of the prosecution. 14. The confessional statement given by the Appellant is of some significance. According to this witness, the Appellant had given the confessional statement voluntarily and he had been given sufficient time of about four hours to reflect before making the confessional statement. 13. The Investigating Officer was examined as P.W.8 and he generally supported the case of the prosecution. 14. The confessional statement given by the Appellant is of some significance. The translation has been made by us with the assistance of learned Counsel for the parties and it reads as follows: My wife's name is Deepali. She quarrels with me always. She can't stand me. In the morning, on the day of occurrence, Deepali was coming after taking bath. I was washing mouth. She asked me if I shall go to duty. When I told her that I shall go alter taking tea, she rebuked me. Then, out of anger, I hacked her in the neck. She died instantaneously. 15. On his broad evidence, the Trial Judge convicted the Appellant of having committed the murder of his wife Deepali and sentenced him to undergo imprisonment for life. The Appellant was also asked to pay a fine of Rs. 1,000 and, in default, to further undergo rigorous imprisonment for one month. 16. Learned amicus curiae submitted that the case of the Appellant would fall within Exception 4 to Section 300 of the Indian Penal Code. According to her, the offence was committed by the Appellant without premeditation in a sudden heat of passion. It is submitted by learned Counsel that the rebuke given by Deepali to the Appellant suddenly provoked him and he hit her with a dao and under these circumstances, this case would be fully covered by Exception 4 to Section 300 of the IPC, as interpreted by the Supreme Court in Gopal v. State of Maharashtra (2007) 12 SCC 718 . In this decision, the contours of the 4th Exception of Section 300 of the IPC have been explained in the following words [following Dhirajbhai Gorakhbhai Nayak v. State of Gujarat (2003) 9 SCC 322 ]: For bringing in (operation of Exception 4 to Section 300, IPC) it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The fourth exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic 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 case of Exception 1 there is total deprivation of self-control, in 720 case of Exception 4, 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 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 an 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 could in such cases 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 blamed. 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' occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in 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 had 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 not 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'. 17. According to learned amicus, the Appellant had, at best, committed an offence punishable under the second part of Section 304 of the IPC inasmuch as he had no intention to cause the death of Deepali but he had the knowledge that his act was likely to cause her death. 18. While we agree with learned amicus that the case of the Appellant falls under the 4th Exception to Section 300 of the IPC, we are not in agreement that the Appellant had no intention of causing Deepali's death or causing such bodily injury as was likely to cause her death. It appears from the confessional statement of the Appellant that he and his wife were not carrying on too well notwithstanding the fact that many of the witnesses for the prosecution stated that they were not aware of any quarrels between the husband and wife. 19. It is not clear what words of rebuke were given by Deepali which suddenly provoked the Appellant to pick up his dao and hit her on the neck. However, the blow was severe. 19. It is not clear what words of rebuke were given by Deepali which suddenly provoked the Appellant to pick up his dao and hit her on the neck. However, the blow was severe. The severity of tine blow can be seers from the evidence given by the doctor who stated that the head of the deceased had, more or less, been severed from the rest of the body inasmuch as the dao blow given by the Appellant cut the vertebrae on Deepali's neck. Such a severe blow could only have been given with the intention of causing such bodily injury as is likely to cause the death of Deepali. 20. Under these circumstances, while we are of the opinion that the Appellant is entitled to the benefit of the 4th Exception to Section 300 of the IPC, he is liable to be punished under the second part of Section 304 of the IPC. 21. On the question of quantum of sentence, we are of the opinion that in view of the severity of the blow administered by the Appellant to Deepali, a sentence of 10 (ten) years rigorous imprisonment would be adequate punishment. We direct accordingly. 22. The conviction and sentence of the Appellant, as awarded by the Sessions Judge, is modified to a conviction under the second part of Section 304 of the IPC and the sentence awarded is a above. 23. The appeal stands disposed of in the above terms. 24. For the assistance rendered by learned amicus curiae, the Assam, State Legal Services Authority should remunerate her with a sum of Rs. 5,000 25. The trial court records be sent back immediately. Appeal disposed of.