JUDGMENT : D.N. Patel, J. 1. Both the Criminal Appeals have been preferred by the appellants accused, being aggrieved and feeling dissatisfied with the judgment and order of conviction and sentence dated 1st April, 2010 and 3rd April, 2010 respectively, passed by learned Additional Judicial Commissioner, Fast Track Court-VIII, Ranchi in Sessions Trial No. 252 of 1994, whereby, these appellants have been convicted for the offence punishable under Section 302 to be read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.5,000/-each and in case of default, further simple imprisonment for six months has been imposed, with a direction that 60% of the fine shall go to the widow of the deceased. However, the sentences have been ordered to run concurrently. 2. The case of the Prosecution: The case of the prosecution is that on 2nd November, 1993 at 04:30 P.M, the informant Bodhan Mahto (P.W-6) gave fardbeyan to police that on 29th October, 1993 at 7:30 P.M. when he was going from his house to the house of one Bhushan Singh, he heard the noise of scuffle near the house of his brother Bhuneshwar Mahto (deceased) and thereafter he along with Bhushan Singh immediately rushed to the place of occurrence and saw that (1) Kajru Mahto, (2) Gandu Mahto and (3) Mohan Mahto were assaulting his brother Bhuneshwar Mahto with Balwa and Farsa and also abused him. The informant further alleged that when he reached at the place of occurrence, the aforesaid accused persons left his brother who was grievously injured. The informant saw that blood was oozing out from the head of his brother. Thereafter, the informant with the help of other persons took his injured brother to Burmu Hospital and from there, the Doctor referred him to RMCH, Ranchi, who was still unconscious and unable to speak. The informant further alleged that few days prior to the occurrence, the above named accused persons had assaulted his brother Bhuneshwar Mahto on account of grazing of the field of his brother by the goat of Kajru Mahto and due to that reason, this occurrence took place. Altogether ten witnesses have been examined by the prosecution: P.W-1 Manoj Yadav He is a nephew of deceased Bhuneshwar Mahto and is an Eye witness of the occurrence. P.W-2 Bhushan Singh He is an Eye witness of the occurrence. Altogether ten witnesses have been examined by the prosecution: P.W-1 Manoj Yadav He is a nephew of deceased Bhuneshwar Mahto and is an Eye witness of the occurrence. P.W-2 Bhushan Singh He is an Eye witness of the occurrence. P.W-3 Pachu Mahto He is a nephew of deceased Bhuneshwar Mahto and is an Eye witness of the occurrence. P.W-4 Nanhaki Devi She is a niece of deceased Bhuneshwar Mahto and is an Eye witness of the occurrence. P.W-5 Guliya Devi She is a wife of deceased Bhuneshwar Mahto and is an Eye witness of the occurrence. P.W-6 Bodhan Mahto He is an informant of this case and is brother of deceased Bhuneshwar Mahto. He is an Eye witness of the occurrence. He has proved his signature in the fardbeyan i.e marked as Ext.1 P.W-7 Rajesh Kumar Singh Tendered witness P.W-8 Triloki Nath Pathak He is an Investigating officer of this case. He has proved the fardbeyan i.e marked as Ext.2. He has also proved the Inquest report and formal FIR i.e marked as Ext.3 and 4 respectively. P.W-9 Niranjan Kumar Ghosh He is an officer-in-charge of Burmu Police station. He has submitted the charge-sheet in the court. P.W-10 Dr. Tulsi Mahto He is a Doctor who has conducted the Post-mortem of the dead body of deceased Bhuneshwar Mahto and has proved the Post-mortem report i.e marked as Ext.5 Three witnesses have been examined by the defence: D.W-1 Binod Singh He deposed that deceased Bhuneshwar Mahto was addicted to wine and on date of occurrence he scuffles with some persons at market and he was assaulted by the aforesaid persons. The accused persons not belong to village-Bare. D.W-2 Balchand Prajapati He deposed that deceased Bhuneshwar Mahto was addicted to wine and on date of occurrence he scuffles with some persons at market and he was assaulted by the aforesaid persons. D.W-3 Yugal Kishore Singh He deposed that deceased Bhuneshwar Mahto was drunked and Balchand Prajapati was taking him home and when Bhuneshwar Mahto reached his house then about 10-12 unknown persons started assaulting Bhuneshwar Mahto. Learned counsel for the appellants submitted that prosecution has failed to prove the offence of murder committed by these appellants, beyond reasonable doubts. D.W-3 Yugal Kishore Singh He deposed that deceased Bhuneshwar Mahto was drunked and Balchand Prajapati was taking him home and when Bhuneshwar Mahto reached his house then about 10-12 unknown persons started assaulting Bhuneshwar Mahto. Learned counsel for the appellants submitted that prosecution has failed to prove the offence of murder committed by these appellants, beyond reasonable doubts. It is further submitted by the learned counsel for the appellants that the incident has taken place on 29th October, 1993 at about 07:30 p.m. whereas, statement before the police was given by P.W.6 on 2nd November, 1993 i.e. after delay of approximately 4 days. This aspect of the matter has not been properly appreciated by the trial court. It is further submitted by the learned counsel for the appellants that deceased expired after 8 to 9 days in a hospital. Moreover, looking to the depositions given by prosecution witnesses as well as deposition given by the Investigating Officer, who is P.W.8, first in point of time, First Information Report was lodged by these appellants and thereafter, the present First Information Report was lodged by the deceased side persons. Kajru Mahto who is appellant in Criminal Appeal (DB) No. 495 of 2010 had sustained injuries in a free fight on his chest and he was also admitted in the hospital. The so called eye witnesses have deliberately omitted this crucial aspect of the matter in their examination-in-chief, whereas, during their cross examination, they have deposed that Kajru Mahto [appellant in Criminal Appeal (DB) No. 495 of 2010] had also sustained injuries during free fight and blood was oozing out from his chest and he was hospitalised. Thus, it is submitted by the learned counsel for the appellants that because of this aspect of the matter, the case of the appellants is falling within Exception 4 of Section 300 of the Indian Penal Code. It is also submitted by the learned counsel for the appellants that the so called eye witnesses have no love, labour and loss for the truth. The weapons narrated in the hands of the appellants-accused are sharp cutting instruments whereas, there is not a single injury upon the body of the deceased by those sharp cutting instruments, as per the medical evidence given by P.W.10 (Dr. Tulsi Mahto), who has narrated the injury upon the body of the deceased. The weapons narrated in the hands of the appellants-accused are sharp cutting instruments whereas, there is not a single injury upon the body of the deceased by those sharp cutting instruments, as per the medical evidence given by P.W.10 (Dr. Tulsi Mahto), who has narrated the injury upon the body of the deceased. Thus, there are ostensible discrepancies in the evidences of the so-called eye witnesses and medical evidence to be read with Ext. 5 (Post mortem Report). This aspect of the matter has also not been properly appreciated by the learned trial court while convicting these appellants vide judgment and order of conviction and sentence dated 1st April, 2010 and 3rd April, 2010 respectively in Sessions Trial No. 252 of 1994. It is further submitted by the learned counsel for the appellants that there are several inconsistencies in between the depositions of the so-called eye witnesses about the narration of the occurrence. Moreover, P.W.1 has stated in paragraph 19 of his statement that several persons had also rushed at the place of occurrence, but, only one or two person have been examined as witnesses, whereas, Arun Singh, Raju Singh and Vinod Singh, who are independent witnesses, have not been examined as prosecution witnesses. It is further submitted by the learned counsel for the appellants that only selected persons were examined by the prosecution, who are close relatives of the deceased and they are highly interested witnesses in the conviction and they have failed to narrate the free fight between the two groups. In paragraph no. 19, it is stated by P.W.1 that he reached first in point of time at the place of occurrence whereas, in the same breath, he has stated that prior to his arrival at the place of occurrence, several other persons had reached there. Thus, the prosecution witnesses have not correctly and truly narrated the manner in which the occurrence has taken place. Only one sided version has been given by all of them. The most important aspect of the matter that Kajru Mahto [appellant in Criminal Appeal (DB) No. 495 of 2010] had also sustained injuries on his chest, has not been narrated at all. Even the Investigating Officer (I.O.) has not narrated how the appellant-Kajru Mahto had sustained injuries. It is further submitted by the learned counsel for the appellants that these appellants have undergone specific part of the sentence. Even the Investigating Officer (I.O.) has not narrated how the appellant-Kajru Mahto had sustained injuries. It is further submitted by the learned counsel for the appellants that these appellants have undergone specific part of the sentence. Kajru Mahto [appellant in Criminal Appeal (DB) No. 495 of 2010] has already undergone approximately 9 years and 11 months imprisonment and both the appellants in Criminal Appeal (DB) No. 450 of 2010 have already undergone approximately 8 years and 6 months imprisonhment and, therefore, looking to the fact that - (a) the injuries were also sustained by the accused side persons; (b) Kajru Mahto [appellant in Criminal Appeal (DB) No. 495 of 2010] was hospitalised; (c) death of deceased took place after 8 to 9 days from the date of occurrence; (d) the weapons in the hands of the appellants were alleged to have been sharp cutting instruments, whereas, there is not a single injury by the sharp cutting instrument, as per the post-mortem examination report, and on the contrary, P.W.10 has stated that the injuries were capable to be caused by hard and blunt substance; and (e) even First Information Report has been lodged after 3 to 4 days from the date of occurrence. let the conviction for causing murder of the deceased be converted into culpable homicide, not amounting to murder and maximum punishment of 10 years may be imposed instead of life imprisonment because there was no intention on the part of these appellants to cause murder of the deceased nor was there any act done by these appellants in furtherance of their common intention of causing murder of deceased. 4. Arguments canvassed by the learned A.P.Ps. in both the aforesaid appeals: Learned A.P.Ps., appearing on behalf of the State submitted that no error has been committed by the learned trial court in convicting these appellants for causing murder of the deceased and the prosecution has proved the offence of murder committed by these appellants beyond reasonable doubts. It is further submitted by the learned A.P.Ps. in both the appeals that neither there are major contradictions nor major omissions in the depositions of the prosecution witnesses. It is also submitted by the learned A.P.Ps. that the case of the prosecution is based upon the evidence of several eye witnesses, who are P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6. It is further submitted by learned A.P.Ps. in both the appeals that neither there are major contradictions nor major omissions in the depositions of the prosecution witnesses. It is also submitted by the learned A.P.Ps. that the case of the prosecution is based upon the evidence of several eye witnesses, who are P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6. It is further submitted by learned A.P.Ps. that looking to the medical evidence given by P.W.10, there is enough corroboration to the depositions of the prosecution witnesses. It is further submitted by the learned A.P.Ps., appearing on behalf of the State that the presence of these appellants has also been proved by the prosecution witnesses. Thus, no error has been committed by the learned trial court in convicting these appellants vide judgment and order of conviction and sentence dated 1st April, 2010 and 3rd April, 2010 respectively in Sessions Trial No. 252 of 1994 and, hence, these Criminal Appeals may not be entertained by this Court. Reasons: 5. Having heard learned counsels for both the sides and looking to the evidences on record, we hereby quash and set aside the judgment and order of conviction and sentence dated 1st April, 2010 and 3rd April, 2010 respectively passed in Sessions Trial No. 252 of 1994 by learned Additional Judicial Commissioner, Fast Track Court-VIII, Ranchi to the extent that conviction of these appellants for causing murder of the deceased is converted into culpable homicide, not amounting to murder and we are thereby, converting the sentence of life imprisonment into rigorous imprisonment for 10 years for the following facts, reasons and judicial pronouncements: (i) It is the case of the prosecution that occurrence has taken place on 29th October, 1993 at about 07:30 p.m. P.W.6 is an informant, who has given statement before the police on 2nd November, 1993 at about 04:30 p.m. that after hearing alarm of the deceased he rushed at the place of the occurrence where other persons were also present and he saw these appellants causing injuries to Bhuneshwar Mahto by Balwa and Farsa, which are sharp cutting instruments. Bhuneshwar Mahto was immediately taken to the hospital, who expired on 6th November, 1993. (ii) The prosecution has examined as many as 10 witnesses and the defence has also examined 3 witnesses. We have perused their depositions, in detail. Bhuneshwar Mahto was immediately taken to the hospital, who expired on 6th November, 1993. (ii) The prosecution has examined as many as 10 witnesses and the defence has also examined 3 witnesses. We have perused their depositions, in detail. (iii) It appears that P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 have not correctly narrated the occurrence, looking to their depositions, wherein they have not stated anything about the injuries sustained by Kajru Mahto [appellant in Criminal Appeal (DB) No. 495 of 2010]. In examination-in-chief, they have pleaded thoroughly ignorance about the injuries sustained by the accused side person. It is their love, labour and loss for the truth. During their cross examinations, it is stated by the socalled eye witnesses about the injuries sustained by the accused side person to the extent that Kajru Mahto was also hospitalised. The injuries have not been explained how it was sustained by Kajru Mahto, even by the Investigating Officer. (iv) Thus, looking to the narration of the occurrence by the prosecution witnesses i.e. P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6, there appears to be free fight between two groups, in which the accused side person had also sustained injuries on the vital part of the body (chest). Accused side person was also hospitalised. (v) Moreover, it appears that deceased expired on 6th November, 1993, whereas, occurrence has taken place on 29th October, 1993 at about 07:30 p.m. Thus, deceased has expired after approximately 8 days from the date of occurrence. (vi) Looking to the free fight in between both the groups and the injuries sustained by the accused side person also, it appears that there was no intention of these appellants to cause death of deceased, much less, there was common intention of these appellants to commit an act in furtherance of their common intention to cause death of the deceased. Thus, at the highest, it is a case of committing an offence of culpable homicide, not amounting to murder. (vii) For the ready reference, Exception 4 of Section 300 of the Indian Penal Code reads as under: (vii) For the ready reference, Exception 4 of Section 300 of the Indian Penal Code reads as under: “300. Thus, at the highest, it is a case of committing an offence of culpable homicide, not amounting to murder. (vii) For the ready reference, Exception 4 of Section 300 of the Indian Penal Code reads as under: (vii) For the ready reference, Exception 4 of Section 300 of the Indian Penal Code reads as under: “300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or xx xx xx xx Exception 4.- Culpable 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 offender having taken undue advantage or acted in a cruel or unusual manner.” (Emphasis supplied) (viii) In view of the aforesaid provision of the Indian Penal Code and looking to the evidences on record, it appears that it is a case of culpable homicide not amounting to murder, committed by these appellants. This aspect of the matter has not been properly appreciated by the learned trial court while convicting and sentencing these appellants vide judgment and order of conviction and sentence dated 1st April, 2010 and 3rd April, 2010 respectively, in Sessions Trial No. 252 of 1994. (ix) It has been held by the Hon'ble Supreme Court in the case of Lakshmi Singh v. State of Bihar, reported in (1976) 4 SCC 394 , in paragraph 12, which reads as under: “12. PW 8 Dr S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the post-mortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the court, on April 22, 1966 and found the following injuries on his person: “1. Bruise 3” × ½” on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle. 2. Incised wound 1” × 2 mm × skin subcutaneous deep on the lateral part of the left upper arm, near the shoulder joint. 3. Punctured wound ½” × 2 mm × 4 mm on the lateral side of the left thigh about 5 inches below the hip joint. According to the doctor Injury 1 was grievous in nature as it resulted in compound fracture of the fibula bone. 3. Punctured wound ½” × 2 mm × 4 mm on the lateral side of the left thigh about 5 inches below the hip joint. According to the doctor Injury 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor is it believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows: “The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of PW 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries ... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.” This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. State of Punjab which was also a murder case, this Court, while following an earlier case, observed as follows: [SCC p. 531 : SCC (Cri) p. 621, para 20] “In State of Gujarat v. Bai Fatima one of us (Untwalia, J.) speaking for the Court, observed as follows: [SCC p. 13 : SCC (Cri) p. 390, para 17] In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.” It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: “(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.” (Emphasis supplied) (x) It has been held by the Hon'ble Supreme Court in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing, reported in (2001) 6 SCC 145 , in paragraphs 17 and 24, which read as under: “17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar, Ram Sunder Yadav v. State of Bihar and Vijayee Singh v. State of U.P., all three-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case. 24. Dr. Varvadia, PW 2, who examined Sabuji Viraji on 24-3-1980 at 12.15 a.m. found him to have sustained 3 injuries of which the incised wound on the left side of the upper part of the abdomen was 1” × ¼” × ¼”. This injury is attributed to Magansing, Accused 2 by all the prosecution witnesses. They are consistent on this point and not shaken in cross-examination. The dying declaration, Ext. 28 made by the deceased Sabuji and recorded by the Magistrate also attributes authorship of this injury to Magansing, Accused 2. However, what has to be really determined is the nature of this injury. In his statement Dr Varvadia has not stated the nature of the injury caused. Sabuji Viraji died on 30-3-1980. Post-mortem on his dead body was conducted on 31-3-1980 by Dr Solanki, PW 4. Dr Solanki, PW 4, conducted post-mortem on the dead body of Sabuji on 31-3-1980 at 10.20 a.m. He found the wound stitched. On opening it he found internally — “large intestine sutured, wound 2.5 cm on splenic flexure gaping containing faecal matter; surrounding area of wound was red in colour; opening was found absent”. The cause of death in the opinion of Dr Solanki was shock due to acute peritonitis. None of the two doctors has deposed if the injury was grievous or sufficient in the ordinary course of nature to cause death or that the injury was so imminently dangerous that it must have in all probability resulted in death or was likely to cause death. The exact cause of peritonitis is not known. That negligence to treat the wound could be a contributing factor cannot be ruled out. The exact cause of peritonitis is not known. That negligence to treat the wound could be a contributing factor cannot be ruled out. In such state of medical evidence it will not be proper to draw an inference against Magansing, Accused 2 of his having committed murder of Sabuji Viraji punishable under Section 302 IPC. The injury dealt by him by a sharp weapon had cut into the intestine. Though an intention to cause death or such bodily injury as is likely to cause death cannot be attributed to him, knowledge is attributable to Accused 2 that an injury by a knife into the abdomen was likely to cause death. As it was a case of sudden fight, the act of this accused would amount to culpable homicide not amounting to murder punishable under Part II Section 304 IPC. The other injuries on the person of Sabuji are not attributed to Accused 2 Magansing.” (Emphasis supplied) (xi) It has been held by the Hon'ble Supreme Court in the case of Pappu v. State of M.P., reported in (2006) 7 SCC 391 , in paragraphs 12, 13 and 15, which read as under: “12. For bringing in its 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. 13. 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 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. 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. 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. 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”. 15. Considering the factual background of the case at hand it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice.” (Emphasis supplied) (xii) It has been held by the Hon'ble Supreme Court in the case of Muthu v. State, reported in (2009) 17 SCC 433 , in paragraphs 16 and 17, which read as under: “16. In our opinion on the facts of the case the act committed was done with the knowledge that it is likely to cause death but without any intention to cause death or cause such bodily injury as is likely to cause death. Hence the offence comes under Part II of Section 304 IPC. 17. For the reasons given above, the sentence awarded by the courts below is substituted by the sentence of five years’ simple imprisonment and any period of incarceration in jail which the accused has already undergone shall be deducted from the aforesaid period of five years. The judgments of the courts below are modified accordingly and the appeal stands disposed of.” (Emphasis supplied) (xiii) It has been held by the Hon'ble Supreme Court in the case of Surain Singh v. State of Punjab, reported in (2017) 5 SCC 796 , in paragraphs 13 and 14, which read as under: “13. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. Exception 4 to Section 300 IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The Exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of 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 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. 14. 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. 14. 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. 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 a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”. (Emphasis supplied) (xiv) It has been held by the Hon'ble Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 , in paragraphs 6, 7 and 8, which read as under: “6. We have perused the evidence in this behalf. We find that the prosecution case itself proceeds that the incident took place in the spur of moment. On 15-3-2008, when the deceased along with her mother went for labour work in agricultural field and she returned home around noon, she was preparing lunch in the kitchen when, as per the prosecution story, the appellant came to the house and questioned the deceased about delay in cooking lunch. On this, altercation took place between the appellant and his wife. On this, altercation took place between the appellant and his wife. At that stage, the appellant got furious and in a rush of the moment, he picked a wooden object lying near the place of incident and inflicted injury to the deceased. It is also an admitted case of the prosecution that only one single blow was inflicted. The death of Shakuben took place 10 days after the said incident while she was undergoing treatment at Baroda Hospital. This is the case of the prosecution itself. 7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following: (a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used; (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation. (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. 8. Keeping in view the aforesaid factors it becomes evident that the case of the appellant would fall under Section 304 IPC as the incident took place due to a sudden altercation which was a result of delay in preparing lunch by the deceased. The appellant picked up a wooden object and hit the deceased. The medical evidence shows that not much force was used in inflicting the blow to the deceased. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. The prosecution has not set up any case suggesting that relationship between the husband and wife was not cordial, otherwise. Manifestly, the incident took place due to sudden provocation and in a heat of passion the appellant had struck a blow on his wife, without taking any undue advantage. We are, therefore, of the opinion that it was an offence which would be covered by Section 304 Part II IPC and not Section 302 IPC.” (Emphasis supplied) (xv) In view of the aforesaid decisions and the obtaining evidences and the discussions made hereinabove, we find the appellants guilty for the offence of culpable homicide not amounting to murder, and convict them for the offence under Section 304 Part-II of the Indian Penal Code and sentence them to undergo rigorous imprisonment for 10 years for the said offence. 6. Consequently, the judgment and order of conviction and sentence dated 1st April, 2010 and 3rd April, 2010 respectively passed in Sessions Trial No. 252 of 1994 by learned Additional Judicial Commissioner, Fast Track Court-VIII, Ranchi is hereby set aside and the period of sentence undergone by the above appellants shall be set off as against the sentence of rigorous imprisonment of 10 years imposed under Section 304 Part-II. 7. Accordingly, these Criminal Appeals are allowed to the extent as indicated above.