JUDGMENT 1. - This criminal appeal preferred by appellant Keshia S/o Saja Gamer is directed against the judgment of conviction and order of sentence dated 06.08.2003 passed by the learned Additional District and Sessions Judge (Fast Track), Udaipur in Sessions Case No. 143/2002, whereby the appellant was convicted under Section 302 IPC and sentenced to undergo life term imprisonment alongwith a fine of Rs. 1,000/- and in default of payment of fine, further to undergo rigorous imprisonment of three months. 2. The brief facts of the case are that complainant Meetha Lal submitted an oral report on 20.07.2002 at 7.00 a.m. at Police Station Mandwa, District Udaipur to the effect that on 19.07.2002 on the eve of the marriage of daughter of Khema, the complainant and his brother Lachia were there. Many other persons were also there. They were dancing in the process. In the evening at about 5.00 p.m. Keshia came with a lathi in his hand and began to beat Lachia, the brother of the complainant, with lathi, due to which Lachia fell down. He was given lathi blows on stomach and back by accused Keshia. Accused Keshia was in drunken condition. In the meantime, Meghla came with Teer Kamthi and shot one teer at Raju. During the beating, Lachia died on the spot. The accused persons ran away. During the incident, Smt. Mani and Mugli, sisters of the complainant, were present at the spot. Bhabhi of the complainant, Smt. Bhugli also received one stone injury. 3. On the basis of the above report, FIR No. 45/2002 was registered for the offence under Section 302 and 307 IPC and the investigation commenced. After usual investigation, charge-sheet was filed in the Court of Munsif and Judicial Magistrate, Kotda against accused-appellant Keshia and another accused Meghla under Section 302/34 IPC. Since the offence was exclusively triable by Court of Sessions, the case was committed to the Court of Sessions Judge, Udaipur. The case was ultimately transferred to the Court of Additional District and Sessions Judge (Fast Track), Udaipur for trial. 4. The present accused-appellant alongwith Meghla were charged for the commission of offence under Section 302 in the alternative 302/34 IPC. To prove the charge, the prosecution examined as many as 11 witnesses, namely, P.W.1 Khuman Singh, P.W.2 Dr. The case was ultimately transferred to the Court of Additional District and Sessions Judge (Fast Track), Udaipur for trial. 4. The present accused-appellant alongwith Meghla were charged for the commission of offence under Section 302 in the alternative 302/34 IPC. To prove the charge, the prosecution examined as many as 11 witnesses, namely, P.W.1 Khuman Singh, P.W.2 Dr. Dhanraj Koli, P.W.3 Rawta Gamar, P.W.4 Meetha Lal, P.W.5 Kehra, P.W.6 Meni, P.W.7 Lala, P.W.8 Bhagga, P.W.9 Mugli, P.W.10 Shaitan Singh, P.W.11 Ratan Singh. The incriminating evidence adduced against the accused was put to him for his explanation under Section 313 CrPC and the accused led no evidence in his defence. The learned trial court after hearing both the parties, convicted accused-appellant Keshia for the commission of offence under Section 302 IPC while acquitting co-accused Meghla from the charge of alleged offence. Being aggrieved by the judgment of conviction and order of sentence passed by the learned trial court on 06.08.2003, accused-appellant Keshia has preferred this appeal. 5. The learned trial court relied upon the evidence of P.W.4 Meetha Lal, P.W.6 Meni and P.W.9 Mugli, who were eyewitnesses of the crime and these three witnesses deposed that on the alleged date of incident at about 5.00 p.m. when they were dancing on account of marriage at the residence of Khema, then Keshia and Meghla came on the spot. Keshia was armed with a lathi and Meghla was carrying Teer Kamthi. Keshia gave two lathi blows to Lachia on his chest and one lathi blow on his back. Meghla caused injury to Raju by teer. Mugli came to intervene and she also sustained injuries. The evidence of P.W.4 Meetha Lal has been corroborated by P.W.6 Meni and P.W.9 Mugli. P.W.4 Meetha Lal was the lodger of the FIR and he also admitted the fact of lodging of the FIR. The learned trial court further relied upon the evidence of P.W.2 Dr. Mugli came to intervene and she also sustained injuries. The evidence of P.W.4 Meetha Lal has been corroborated by P.W.6 Meni and P.W.9 Mugli. P.W.4 Meetha Lal was the lodger of the FIR and he also admitted the fact of lodging of the FIR. The learned trial court further relied upon the evidence of P.W.2 Dr. Dhanraj Koli, who conducted postmortem of deceased Lachia and found four injuries on the body of the deceased, out of which two were abrasions on the left lateral side of the neck just behind the left ear and at the upper one-third of lateral aspect of right arm and rest two injuries were bruises at the left lateral aspect of sternum of the fourth costal cartilage to the left hypogastrium region and at the right lateral aspect of right lumber region near the ninth rib to downward left side of the left eliach region of the back of the body. The learned trial court while relying upon the cause of death and the injuries found on the body of the deceased coupled with the evidence of the eye-witnesses held the accused-appellant guilty for the commission of offence under Section 302 IPC and acquitted co-accused Meghla. 6. During the course of the hearing of the appeal, the only question advanced by the learned counsel for the appellant is that even by accepting the case as it is and even on relying upon the evidence of the eye-witnesses P.W.4 Meetha Lal, P.W.6 Meni and P.W.9 Mugli and the statement of P.W.2 Dhanraj Koli, the offence committed by the appellant does not travel beyond an offence punishable under Section 304 Part II of the IPC. It has been vehemently argued by the learned counsel for the appellant that it is admitted fact that on the day of the occurrence the accused appellant was in drunken condition, but there was no premeditation or any exchange of hot words between deceased Lachia and accused-appellant Keshia. The accused was not having any enmity with the deceased and the lathi blows were given just in spur of the moment while the deceased and other persons were dancing in the marriage party and it can be very well said that the lathi blows were given by the appellant without having any intention to cause death of deceased Lachia. The entire incident took place within a very short time. The entire incident took place within a very short time. In view of the above facts, the learned counsel for the appellant argued that the chances of setting out the case under fourth exception of Section 300 IPC is quite obvious. 7. The learned Public Prosecutor vehemently defended that judgment of the learned trial court and argued that on the basis of the statements of the eye-witnesses, namely, P.W.4 Meetha Lal, P.W.6 Meni and P.W.9 Mugli, coupled with the evidence of P.W.2 Dr. Dhanraj Koli, it is well proved that the appellant intentionally caused death of deceased Lachia and it cannot be said that the learned trial court erred in convicting the accused-appellant under Section 302 IPC. 8. We have pondered over the arguments advanced by the learned counsel for both the parties and also perused the statements of the eye-witnesses P.W.4 Meetha Lal, P.W.6 Meni and P.W.9 Mugli alongwith the statement of P.W.2 Dr. Dhanraj Koli. We are not going to discuss the other evidence adduced by the prosecution because in view of the statement of three eye-witnesses, P.W.4 Meetha Lal, P.W.6 Meni and P.W.9 Mugli, the homicidal death of deceased Lachia by accused-appellant Keshia is not at all in dispute. The only question before this court is the nature of the offence committed by the present accused appellant in the light of evidence adduced by the prosecution during the course of the trial. 9. The Hon'ble Supreme Court in Lachman Singh v. State of Haryana reported in (2006) 10 SCC 524 , while explaining the applicability of Exception 4 to Section 300 IPC held as under:- "10.For brining it into operation 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. 11.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. 11.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 I there is total deprivation of self-control, in 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 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. 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 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 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 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. 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 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". 10. In view of the judgment of the Hon'ble Supreme Court in the case of Lachman Singh (supra) this court is required to examine as to whether in the case in hand adequate evidence is available to bring the case within the purview of Exception 4 of Section 300 IPC and for that this court is required to examine that the death of Lachia was caused (1) without premeditation; (2) in a sudden fight; (3) without the offender having taken undue advantage or acted in a cruel or in unusual manner; and (4) whether accused Keshia was quarrelling or fighting with deceased Lachia. 11. The prosecution examined three eye-witnesses, namely, P.W.4 Meetha Lal, P.W.6 Meni and P.W.9 Mugli, and all the three eye-witnesses in their statements deposed that when they were dancing in the marriage ceremony at the residence of Khema, present accused-appellant Keshia came alongwith Meghla. Keshia was armed with a lathi and Meghla was armed with teer kamthi. Keshia was in drunken condition and without spurring any words, he started to beat Lachia with lathi. Four injuries were caused by the accused-appellant and Lachia died at the spot. Further P.W.2 Dr. Keshia was armed with a lathi and Meghla was armed with teer kamthi. Keshia was in drunken condition and without spurring any words, he started to beat Lachia with lathi. Four injuries were caused by the accused-appellant and Lachia died at the spot. Further P.W.2 Dr. Dhanraj Koli deposed that injury No. 1, 2 and 3 were not responsible for the cause of death of deceased and injuries No. 4 was a bruises of the size 13 cm. x 2.5 cm. at the right lateral aspect of right lumber region near the ninth rib to downward left side of the left eliach region of the back of the body and after opening the body, he found that the kidney was ruptured and there was incised wound on the kidney. The cause of death was shock due to excessive bleeding from the kidney. 12. On examination of all the aforesaid evidence, it is quite clear that there was no enmity between the accused-appellant and the deceased and there was no premeditation. The fight or quarrel between the accused and the deceased was not with any premeditation and thought, but at the same time it can very well be said that the present accused must be having knowledge about the consequence of giving lathi blows, but there was conspicuous absence of intention to kill the deceased. The fact remains that accused Keshia was under intoxication and the entire incident erupted during the marriage ceremony. The accused also did not try to take any undue advantage of the circumstances existing as the external injuries were only abrasions and bruises and no injury was found on the vital part of the body and there was no repetition of lathi blows on the vital parts. In such circumstances, the case of the accused comes within the Exception carved out under clause (4) to Section 300 IPC, as explained by Hon'ble Supreme Court in the case of Lachman Singh (supra). 13. The resultant effect of the above discussion is that the offence committed by the accused appellant is not an offence punishable under Section 302 IPC, but an offence punishable under Section 304 Part-II IPC. 14. Consequently, the appeal deserves acceptance in part. Accordingly, the same is allowed partly. The conviction recorded for accused appellant Keshia S/o Saja Gamar vide judgment dated 06.08.2003 is modified from Section 302 IPC to Section 304 Part-II IPC. 14. Consequently, the appeal deserves acceptance in part. Accordingly, the same is allowed partly. The conviction recorded for accused appellant Keshia S/o Saja Gamar vide judgment dated 06.08.2003 is modified from Section 302 IPC to Section 304 Part-II IPC. The sentence awarded, i.e. life term imprisonment alongwith fine, is also modified to a rigorous imprisonment of seven years with a fine of Rs. 1000/-. In default of payment of fine, the accused appellant shall be liable to further undergo three months' rigorous imprisonment.Appeal Partly allowed. *******