JUDGMENT 1. - This appeal under Section 374 Cr.P.C. has been filed against the judgment passed by Additional Sessions Judge (Fast Track), Chhabra in Sessions Case No. 89/2003 whereby the appellant has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment and fine of Rs. 2,000/- and in default of payment of fine, he has to further undergo two years R.I. 2. The short facts of the case giving rise to this appeal are that a written report Ex.2 was filed by Smt. Rajan Bai (PW/2) at Police Station, Chhipabarod Distt. Baran alleging therein that today at about 9-9.30 PM, his husband came from market, at that time, appellant who is brother-in-law of Rajan Bai was abusing wife of Mohan for which his husband has denied him, thereafter his husband has taken his dinner and when he was staying outside the house, appellant again started abusing and on objection by husband Prem Chand appellant caught his neck, assaulted him and lifted a stone and hit him, her husband fell down unconscious, he was shifted to Government Hospital, Chhipabarod where Doctor has declared him dead. This incident has been seen by Mohanlal, Madanlal and Natibai etc. On this report FIR No. 117/99 (Ex.P/13) was registered under Section 302 IPC. After investigation charge sheet has been against the appellant. 3. The learned trial Court framed charges against the appellant for the offence under Section 302. The prosecution has examined PW.1 Kanhaiyalal, PW.2 Rajan Bai, PW.3 Chittarmal, PW.4 Hemraj, PW.5 Natti Bai, PW.6 Mamta Bai, PW.7 Mohanlal, PW.8 Madanlal, PW.9 Umashankar, PW.10 Omprakash, PW.11 Tejmal, PW.12 Dr. Gangadhar Mittal, PW.13 Shyamlal and PW.14 Madanpal Singh to support his case and also relied on 14 documents. Statements of accused appellant have been recorded under Section 313 Cr.P.C. After conclusion of trial, the present appellant has been convicted and sentenced, as referred above, hence this appeal. 4. Heard the learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 5. Statements of accused appellant have been recorded under Section 313 Cr.P.C. After conclusion of trial, the present appellant has been convicted and sentenced, as referred above, hence this appeal. 4. Heard the learned counsel for the appellant and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 5. The only contention of the present appellant is that according to the prosecution evidence the appellant was abusing his real brother, there was no motive for the appellant to murder the deceased, admittedly there was no enmity between the parties, the incident has taken place in the spur of moment when some altercation has taken place between the parties, there was no quarrel earlier and appellant has attacked only once which resulted in death, hence offence would come under Exception 4 to Section 300 IPC and the appellant be convicted for the offence under Section 304 Part-I and his sentence be reduced to the period already undergone. 6. The learned Public Prosecutor has opposed the contention of the appellant and submitted that the only intention of the appellant was to commit murder. 7. The contention of the counsel for the appellant is that from the facts of the case, the incident does not travel beyond the scope of Section 304 Part-I and reliance has been placed on Lachman Singh v. State of Haryana, (2006) 10 SCC 524 wherein it has been held: "It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overact in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof." Further reliance has been placed on Thankachan & Anr. v. State of Kerala, AIR 2008 SC 406 wherein it has been held: "10. The Fourth Exception to 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 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 attachis to each fighter. 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 attachis 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 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. 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 or 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 that 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". 8. Further, in Ramesh Kumar @ Toni v. State of Haryana, AIR 2009 SC 2447 , it has been held: "We find that the prosecution story itself spells out that all these conditions are satisfied in the present case. As per the eye witnesses, PW.8 and PW.9, the incident had happened when the deceased accompanied by the two witnesses were passing through the vacant field of the accused, the appellant had abused him for having entered his field on which the deceased had also abused the appellant. As per the eye witnesses, PW.8 and PW.9, the incident had happened when the deceased accompanied by the two witnesses were passing through the vacant field of the accused, the appellant had abused him for having entered his field on which the deceased had also abused the appellant. It appears that it was after this altercation that the appellant inflicted a spade (kassi) blow on the head of the deceased. We also see from the prosecution evidence that though the fields of the two parties were adjacent to each other, no quarrel of any kind had earlier taken place. In this view of the matter, we are of the opinion that the case of the appellant would fall under exception 4 and be punishable under Section 304 Part I of the IPC as a single injury had been inflicted on the head of the deceased." In Vijay Ramkrishan Gaikwad v. State of Maharashtra & Anr., (2012) 11 SCC 592 , it has been categorically held: "The occurrence thus has the features of an incident in which an injury is inflicted in a sudden fight without premeditation in the heat of passion upon a sudden quarrel within the contemplation of Exception 4 to Section 300 IPC, which takes the case out of the purview of murder as defined in the said section. It is true that only one injury was caused to the deceased but the same is not conclusive by itself, for even a single injury can in a given case constitute murder, having regard to the weapon used and the part of the body chosen for inflicting the injury." 9. There is no dispute about the fact that incident has taken place on spur of moment when some quarrel has taken place between the two brothers. Admittedly there was no enmity between the parties and appellant has no premeditation for commission of the crime. First the appellant has abused the deceased and thereafter inflicted only one blow that too from stone. No deadly weapon has been used. 10. In view of the above discussion, we are not inclined to uphold the conviction of the accused-appellant for offence under Section 302 IPC, as in our considered view, the act of accused appellant would not be culpable homicide amounting to murder. No deadly weapon has been used. 10. In view of the above discussion, we are not inclined to uphold the conviction of the accused-appellant for offence under Section 302 IPC, as in our considered view, the act of accused appellant would not be culpable homicide amounting to murder. Analysis of the evidence as detained out above clearly show that his act would amount to culpable homicide not amounting to murder falling in Section 304 Part-I IPC. Accordingly, we modify the conviction of accused appellant. Considering the fact that accused -appellant is already in jail for about 10 years and 6 months, we sentence him to the period already undergone by him. The accused appellant, if not required to be detained in connection with any other case, may be released forthwith. The impugned judgment dated 8.10.2003 passed by Additional Sessions Judge (Fast Track), Chhabra, Distt. Baran in Sessions Case No. 89/2003 is modified accordingly.Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellant Chhotu Lal S/o Devlal is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice thereof, shall appear before the Supreme Court.The appeal is accordingly allowed.Appeal allowed. *******