JUDGMENT ANANT S. DAVE, J. 1 Since both these appeals arise from the common judgment and order passed by the learned Sessions Judge, they are being decided by this common judgment. 2 For the sake of convenience, parties shall be referred to as per their status before the learned Sessions Judge as Accused1 [Kishore @Keshu Karsanbhai Baraiya] [A1]; Accused2 [Bhagwanbhai Karsanbhai Baraiya] [A2]; Accused No.3 [Lakhmanbhai Karsanbhai Baraiya] [A3]; and Accused No.4 [Karshanbhai @Karman Jadavbhai Baraiya [A4]. 3 Both the appeals are directed against the judgment and order dated 29.03.2010 passed by the learned Additional Sessions Judge, Fast Track Court, Veraval camp at Una in Sessions Case No.6 of 2008. 4 Criminal Appeal No.1033 is preferred by the State of Gujarat challenging the order dated 29.03.2010 acquitting accused Nos.2, 3 and 4 of the offences punishable under Sections 302, 323, 504, 506(2) of the India Penal Code and Section 135 of the Bombay Police Act and Criminal Appeal No.413 of 2011 is preferred by Accused No.1 challenging the judgment and order of conviction and sentence sentencing the Accused No.1 to undergo life imprisonment and fine of Rs.10,000/and in default to undergo Simple Imprisonment for one year for the offence under Section 302 of the Indian Penal Code and sentencing to undergo simple imprisonment for a period of one year and a fine of Rs.500/in default to undergo simple imprisonment of 4 months for the offence under Section 135 of the Bombay Police Act imposed the Sessions Judge. 5 The factual matrix of the prosecution case begins on the basis of first information report registered before the Police Inspector, Una Police Station, which was registered at CR NO.I237/2007 for the offences punishable under Sections 302, 323, 504, 506(2) red with Section 114 of the Indian Penal Code and Section 135 of the Bombay Police Act. 5.1 According to complaint Khetabhai Virabhai Baraiya, on 07.09.2007 at about 21.00 hours at Village Khan, while deceased Karshanbhai Virabhai was returning at home in his rickshaw, the accused persons raised dispute with deceased due to earlier enmity and assaulted him with clear intention to cause death. 5.1 According to complaint Khetabhai Virabhai Baraiya, on 07.09.2007 at about 21.00 hours at Village Khan, while deceased Karshanbhai Virabhai was returning at home in his rickshaw, the accused persons raised dispute with deceased due to earlier enmity and assaulted him with clear intention to cause death. At the relevant point of time, accused Kishore @Keshu Karshan Baraiya administered threat not to pass through his mohalla as well as given filthy abuses and taken him in Osari of his house and inflicted blow of `Datarda' (sickle) on the neck of deceased, whereas other accused persons namely Bhagwanbhai Karshanbhai Baraiya, Lakshambhai Karshanbhai Baraiya and Karshan @Karman Jadavbhai Baraiya had given axe and stick blows and thereby caused severe injuries. Therefore, complainant had filed aforesaid complaint before Police Inspector, Una Police Station, which was registered at CR No.I237/2007 for the offences under Sections 302, 323, 504, 506(2) read with section 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act and investigation was carried out. 5.2 During the investigation, police recorded statement of witnesses, drawn necessary panchnama, recovered muddamal and as there was sufficient evidence connecting respondents with crime produced in this case, charge sheet was filed before the court of learned Judicial Magistrate, First Class, Una and numbered as Criminal Case No.1250 of 2007. 5.3 The offences committed by respondents were absolutely triable by the court of learned Sessions Court, same was committed to the court of learned Additional Sessions Judge, Fast Track Court, Verval Camp at Una and numbered as Sessions Case No.6/20080. 5.4 In order to prove its case against the accused persons, inter alia the prosecution had examined, the following important prosecution witnesses: PW Particulars Exh. PW9 Dr. Kirtikumar Nagjibhai Kataria Exh.60 PW10 Original Complainant – Khetabhai Virabhai Baraiya Exh.69 PW11 Laljibhai Virabhai Baraiya Exh.74 PW12 Shantaben, wife of Babariya Exh.76 Bijalbhai Nanjibhai Exh.78 PW13 Police Witness Shivabhai Rabari Exh.79 PW14 Investigating Officer Pradyumansinh Vijaysinh Gohil Exh.84 5.5 In order to prove its case against the accused persons, inter alia the prosecution had examined, the following important documentary evidence: Sr. No. Particulars Exh. 1 Inquest Panchnama. Exh.33 2 Panchnama of scene of offence. Exh.35 3 Discovery Panchnama. Exh.54 4 Medical Case papers. Exh.61 5 Report sent to Civil Surgeon along with dead body for performing ostmortem. Exh.62 6 Postmortem Report. Exh.65 7 Original Complaint. Exh.70 8 FSL Report. Exh.98 9 Serological Report. No. Particulars Exh. 1 Inquest Panchnama. Exh.33 2 Panchnama of scene of offence. Exh.35 3 Discovery Panchnama. Exh.54 4 Medical Case papers. Exh.61 5 Report sent to Civil Surgeon along with dead body for performing ostmortem. Exh.62 6 Postmortem Report. Exh.65 7 Original Complaint. Exh.70 8 FSL Report. Exh.98 9 Serological Report. Exh.100 5.6 The learned Judge, after considering the rival submissions and on perusal of the documentary as well as oral evidence in the form of depositions, various panchnamas, including postmortem notes and medical evidence, opinion given by the doctor and other medical records, cause of death and motive for crime and passed the impugned judgment and order dated 29.03.2010. 6 Learned counsel Mr. S.R.Divetia for learned advocate Mr. R.M.Agarwal appearing for accused No.1 in Criminal Appeal No.413 of 2011 contended that the accused is falsely implicated in the crime inasmuch as deceased had come to the house of appellant in which heated exchange of words following by scuffle took place and in turn he was injured and later on succumbed to such injuries. It is further submitted that though charges are framed against the accused vide Exh.28, but same are not proved beyond all reasonable doubt by prosecution leading reliable, sufficient and impeachable evidence. Therefore, the conviction and sentence ordered by the learned Judge, for alleged single blow reflected in Col. 17 of the Postmortem Report Exh.65 and so deposed by the Medical Officer, warrants interference by this Court. It is submitted that if the nature of injury is taken into consideration of single stab wound, it cannot be said that in all probabilities the accused intended to cause death in the context of usage of sickle preceded by a in which the deceased injuries himself. Even FSL report about blood stains and samples drawn and duly submitted for examination were also not free from procedural lacuna and ought not have believed by the learned Judge. Even FSL report about blood stains and samples drawn and duly submitted for examination were also not free from procedural lacuna and ought not have believed by the learned Judge. Alternatively, it is submitted that conviction and sentence recorded under Section 302 needs to be modified by giving benefit of exception [4] under Section 300 of the IPC when the act was out of grave and sudden provocation and was a culpable homicide not amounting to murder and in a sudden fight in the heat of the moment and the accused has not taken any undue advantage or acted in a cruel or unusual manner such benefit may accrue to the accused No.1. 6.1 Learned counsel for the appellant placed reliance on the following decisions in support of his case to grant benefit of exception [4] under Section 300 of the IPC to the accused No.1: [1] Ghapoo Yadv & Ors. vs. State of M.P. reported in (2003)3 SCC 528 . [2] Vijay Ramkrishan Gaikwad vs. State of Maharashtra & Anr. reported in (2012)11 SCC 592. [3] Md. Rafique @Chachu v. State of West Bengal reported in JT 2008 (12) SC 506. 7 Learned APP submits that not only the appellant herein, but the accused Nos.2 to 4, who are respondents in Criminal Appeal No.1033 of 2010 are acquitted for guilty for the offences under Sections 302 of the IPC though the it was a collective assault on the deceased by the accused persons. 7.1 The complainant is brother and eye witness PW10 Exh.69 and other eye witnesses viz. Lalji Virabhai Baraiya Exh.74 and Shantaben PW12 Exh.76, no doubt they are brothers and sister of the deceased, who happened to be present at the scene of offence, however, even as per their deposition, it is clear that for a trivial reason about passage of water and parking of rickshaw, the deceased was inflicted injury on a vital part of the body by accused No.1, which is revealed in Column 17 of postmortem report Exh.65, as under: “[1] stab would with everted margins, 2.5 x 0.5 cm obliquely on left side of neck 9 cm from thyroid prominence 2 cm above medial 1/3 of left clavicle. Deep upto 3.5 cm traversing obliquely towe4ds, medially triangular shape with apex on tip medially” 7.2 That Dr. Deep upto 3.5 cm traversing obliquely towe4ds, medially triangular shape with apex on tip medially” 7.2 That Dr. Kirtikumar Nagjibhai Kataria PW9 Exh.60 confirmed the injury No.1, which is on left side of neck cutting thyroid bone. That even blood stain marks from the scene of offence and blood stains on the clothes of the accused are of the same blood group. The manner in which the deceased was dragged from his house and done to death by inflicting injuries on the neck by sickle, which came to be recovered, also establish case of the prosecution beyond reasonable doubt. No doubt, in statement under Section 313 of the Code of Criminal Procedure, 1973 the accused has explained and defended his version about assault by deceased, who came to his residence with sickle and scuffle which took place in which the injured himself, which resulted into ultimate death for which the accused No1. was not responsible. The circumstances raise a question even as to whether benefit of Exception 4 under Section 300 can be given to accused or not. 8. Heard learned counsels for the parties and perused the record of the case. From the record, it clearly appears that with regard to inflicting single blow with sickle by the accused No.1, all witnesses are consistent in their testimonies that it was preceded by an heated exchange of words and scuffle. In such a scenario, even as per the medical evidence viz. injury certificate Col.17 of Autopsy report and deposition of Dr. Kirtikumar Nagjibhai Kataria are sustained and no other injury appears on body of the deceased and it is a case without premeditation in sudden fight in the heat of passion and for the incident no undue advantage is taken by the accused acting in cruel or unusual manner. Further in the statement recorded under Section 313 of the Code the accused has explained the circumstances, including that of injury upon the deceased was result of self defence, as per the plea advanced by the accused No.1. 8.1 In the case of Ghapoo Yadav [supra], the Apex Court, after considering the facts of the case deliberated applicability of exception 4 to Section 300 of the IPC and explained it comparing with Exception 1. In paras 10 and 11 of the said judgment, the Apex Court held as under: “10. 8.1 In the case of Ghapoo Yadav [supra], the Apex Court, after considering the facts of the case deliberated applicability of exception 4 to Section 300 of the IPC and explained it comparing with Exception 1. In paras 10 and 11 of the said judgment, the Apex Court held as under: “10. 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 selfcontrol, 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. 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 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 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'. 11. In the case at hand, out of the seven injuries, only injury No.2 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The infliction of the injuries, and their nature proves the intention of the accused appellants, but causing of such injuries cannot be termed to be either in a cruel or unusual manner for not availing the benefit of Exception 4 to Section 300 IPC. After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physicals. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The assaults were made at random. Even the previous altercations were verbal and not physicals. It is not the case of the prosecution that the accused appellants had come prepared and armed for attacking the deceased. The previous disputes over land do not appear to have assumed characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in cruel or unusual manner. That being so, Exception 4 to Section 300 IPC is clearly applicable. The fact situation bears great similarity to those in Sukhbir Singh vs. State of Haryana ( 2002 (3) SCC 327 ). Appellants are to be convicted under Section 304 Part I, IPC and custodial sentence of 10 years and fine as was imposed by the Trial Court would meet the ends of justice. The appeal is allowed to the extent indicated above”. 8.2 The case of Vijay Ramkrishan Gaikwad [supra] was about Exception [4] of Section 300 and the Apex Court after reiterating principles in a case of of single injury noticed that every case has to necessarily depend upon evidence available and nature of offence would certainly depend upon other attending circumstances, like premeditated act, nature of weapon used and nature of assault on accused, which would help the court to find out definitely about intention on part of the accused. 8.3 We have gone through the evidence carefully. In the present case also, the weapon used is sickle, which is an agricultural equipment and if the nature of injury is taken into consideration, a single sickle blow, in all probabilities, cannot be said to be intended to cause death by the accused No.1. Even Col. 17 of the Postmortem Report Exh.65 and the deposition of the Medical Officer reveal the same. In view of the above, we are of the considered opinion that the case of the appellant of Criminal Appeal No.413 of 2011 would fall under clause "fourth" of 300 IPC. Even Col. 17 of the Postmortem Report Exh.65 and the deposition of the Medical Officer reveal the same. In view of the above, we are of the considered opinion that the case of the appellant of Criminal Appeal No.413 of 2011 would fall under clause "fourth" of 300 IPC. Exception 4 to Section 300 IPC reads as under: “Exception 4Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner" It is clear from the reading of aforesaid Exception 4 that if the act is done without premeditation in a sudden fight or in the heat of passion upon a sudden quarrel and if the offender does not take any undue advantage or act in a cruel or unusual manner, then Exception 4 will be attracted. In our view, this was a case which clearly fall under Exception 4 of Section 300 IPC since there was sudden fight. There was no premeditation either. Therefore, the accused No.1 is liable to be convicted for the offence punishable under Section 304 PartI. 8.6 We, accordingly, alter the conviction of the accused No.1 from Section 302 IPC to Section 304 Part I IPC and sentence him to undergo Rigorous Imprisonment for a period of 10 years. The sentence of fine remains the same. From the jail record dated 10.03.2015 submitted by Superintendent, Amreli Open Jail, it reveals that the accused No.1 is in jail for about 7 years and the period of sentence already undergone shall be considered for remission of sentence qua accused No.1. Accordingly, Criminal Appeal No.413 of 2012 filed by Accused No.1 is allowed partly to the aforesaid extent only. 9 In view of what is recorded by us in Criminal Appeal No.413 of 2011, there is no substance in the appeal filed by the State of Gujarat being Criminal Appeal No.1033 of 2010 and accordingly it stands dismissed.