JUDGMENT : Heard, learned counsel for the appellant, Mr. S. P. Roy and learned Additional Public Prosecutor, Mr. Manoj Kumar. 2. This appellant along with other co-accused Ram Bilash Sah, his own brother were tried for the charge of murder of their own uncle Ram Sakal Sah (the victim and informant) in furtherance of their common intention under Section 302/34 IPC in Session case No.177 of 1992 /40 of 1995 before the learned 1st Additional Sessions Judge, Godda. Accused Ram Bilash Sah was acquitted of the charge while this appellant was convicted for the charge under Section 302 of the IPC by the impugned judgment dated 14.05.1996. He was accordingly sentenced to undergo imprisonment for life vide order of sentence dated 15.05.1996 passed by the learned trial Court. 3. Victim, Ram Sakal Sah son of late Hardyal Sah village-Lohandiya P.S.-Lalmatia, District-Godda recorded his fardbeyan before A.S.I., S. N. Singh of Lalmatia P.S. on 06.06.1992 at 23.00 Hours at Government Hospital, Mahagama and later on died during treatment on 07.06.1992. As per his statement at 7.00 P.M. on that date, Aklu Sah (appellant) was quarreling with his father Doman Sah (brother of the informant) in relation to some issue about a Drumstick tree. In the meantime accused Aklu Sah started beating his father and on brawl the informant's son Suresh Sah and informant reached there and separated them. Thereafter Aklu Sah started abusing the informant and also indulged in fisticuffs in which the villagers intervened and separated them. Thereafter Aklu Sah went inside his house abusing and in a fit of anger came out armed with bow and arrow from his house to the door of the informant and again started abusing. On being stopped, he threatened. Informant further alleged that in fit of anger Aklu Sah shot an arrow in the left side of his abdomen as a result of which informant fell down and became unconscious. Thereafter he was taken by his son and villagers to Mahagama Hospital for treatment. On these allegations informant asserted that Aklu Sah, son of Doman Sah has assaulted him with an arrow in his abdomen with an intention to kill him as a result of which he fell down and became unconscious. 4. Thereafter he was taken by his son and villagers to Mahagama Hospital for treatment. On these allegations informant asserted that Aklu Sah, son of Doman Sah has assaulted him with an arrow in his abdomen with an intention to kill him as a result of which he fell down and became unconscious. 4. Upon institution of the Boarijore P.S. case No.87 of 1992 dated 07.06.1992 under Section 324 and 307 of the IPC to which subsequently, vide order dated 10.06.1992 section 302 of the IPC has been added, investigation commenced leading to filing of the charge-sheet bearing no.41 of 1992 dated 31.08.1992 against named accused, Aklu Sah and non-F.I.R. accused Ram Bilash Sah under Section 114, 115, 302/34 of the IPC. 5. Since the case was triable by court of Sessions, after cognizance, it was committed to the learned court of learned 1st Additional Sessions Judge, Godda, where charges were framed against both the accused persons under Section 302/34 of the IPC. On the charges being read over and explained to the accused persons in Hindi they pleaded not guilty and claimed to be tried. 6. During the course of trial prosecution examined thirteen witnesses named as under:- Naresh Prasad Sah has been examined as P.W.1, Narayan Sah has been examined as P.W.2, Ravikant Bhagat has been examined as P.W.3, Baraku Sah has been examined as P.W.4, Jagdish Prasad Sah has been examined as P.W.5, Sheo Shankar Sah has been examined as P.W.6, Hira Lal Sah has been examined as P.W.7, Bhedan Sah has been examined as P.W.8, Sumitra Devi has been examined as P.W.9, Dr. G.P. Pandey has been examined as P.W.10, Dr. Satendra Mishra has been examined as P.W.11, Suresh Prasad Sah has been examined as P.W.12 and Suresh Nandan Singh, A.S.I. has been examined as P.W.13. 7. The prosecution has adduced a number of documentary evidence up to exhibit -6 with one material exhibit, which are as under:- Signature of Suresh Pd. G.P. Pandey has been examined as P.W.10, Dr. Satendra Mishra has been examined as P.W.11, Suresh Prasad Sah has been examined as P.W.12 and Suresh Nandan Singh, A.S.I. has been examined as P.W.13. 7. The prosecution has adduced a number of documentary evidence up to exhibit -6 with one material exhibit, which are as under:- Signature of Suresh Pd. Sah on the fardbeyan has been proved and marked as exhibit-1, signature of Jagdish Pd Sah on the fardbeyan has been proved and marked as exhibit-1/1, signature of Ram Sakal Sah on the fardbeyan has been proved and marked as exhibit-1/2, whole fardbeyan has been proved and marked as exhibit-2, postmortem report has been proved and marked as exhibit-3, Formal F.I.R. has been proved and marked as exhibit-4, seizure list has been proved and marked as exhibit-5 and death inquest report has been proved and marked as exhibit-6. One material exhibit was adduced and marked as material exhibit-1. All without objection. 8. After closure of prosecution evidence, statement of the accused persons were recorded under section 313 Cr.P.C., where they denied their involvement. On consideration of the evidence on record together with the submission of the parties, this appellant was convicted for the charge of murder under Section 302 of the IPC, while the other co-accused was acquitted. Thus, being aggrieved he is before us in appeal. 9. As informed by the learned counsel for the appellant, he has undergone incarceration since the date of his arrest on 07.06.1992 till he was granted bail during pendency of this appeal vide order dated 06.08.1996. As such, he has remained in custody for about 4 years two months. In support of the challenge learned counsel for the appellant has inter-alia made the following submissions: Evidence on record has been placed at length which reveals that there are three witnesses, who have appeared as eye witnesses namely P.W.1 Naresh Prasad Sah son of the informant, P.W.5 Jagdish Prasad Sah and P.W.12 Suresh Prasad Sah, another son of the deceased/informant. Learned counsel for the appellant submits that though they have supported the prosecution case but other co-witnesses, whose statements were also recorded by the Investigating Officer under Section 161 of the Cr.P.C. namely P.W.4 Baraku Sah, P.W.6 Sheo Shankar Sah, P.W.7 Hira Lal Sah, P.W.8 Bhedan Sah and P.W.9 Sumitra Devi have not stated that they are witness to the crime. They are hearsay witnesses, who have reached the place of occurrence on brawl after the occurrence. Expert evidence of P.W.11, who was the Civil Assistant Surgeon at District Hospital Godda where the victim died on 07.06.1992, but had not conducted the postmortem on the deadbody of victim himself, has practically stated nothing of significance about the nature of ante-mortem injuries sustained by the victim or the cause of death. Evidence of P.W.1, P.W.5 and P.W.12, who have appeared as eye witness when read in entirety shows that on the one hand there was no previous enmity between the accused and the victim or his family, on the other hand there was a sudden quarrel, which aggravated into a sudden fight where in the heat of the moment, the alleged injury has been inflicted by the appellant by means of bow and arrow upon the victim, who was his own uncle. Their evidence further shows that as a matter of fact there was a fight between the appellant and his father in relation to some dispute about a drum-stick tree when the informant went to separate the two being the brother of the father of the appellant. There was no previous enmity neither was there any grudge except that his intervention infuriated the appellant to a sudden fight where without getting any time to cool down or to think rationally the incidence occurred. 10. There are inconsistencies in the statements of the prosecution witness no.1 and prosecution witness no.12 as to the place where the fardbeyan of the informant was recorded. As per P.W.1 informant was first taken on a cart to Mahagama P.S. and from there to Mahagama Hospital and thereafter he was referred to Sadar Hospital, Godda. At para-4, at one place he says that statement of his father was recorded at Lalmatia P.S. but in the same paragraph, in answer to a specific query, he has further stated that his statement was recorded at Mahagama Hospital since his father was unconscious at the Lalmatia P.S. According to this witness, other villagers and agnates like P.W.4, P.W.5, P.W.6 and P.W.12 were present at the time of recording of his fardbeyan at Mahagama Hospital. He further specifically states at para-6 that there was no previous enmity apart from the quarrel on the date of the occurrence between the accused and his family. He further specifically states at para-6 that there was no previous enmity apart from the quarrel on the date of the occurrence between the accused and his family. In the same para-6, he further states that accused also went running to the police station and in answer to a specific query he stated that he had seen injuries on the head of the accused at the police station. His evidence therefore on the one hand creates doubt as to the actual recording of the fardbeyan and whether the instant fardbeyan is the first statement of the victim as he was stated to be unconscious at the police station, on the other hand it also establishes that there was a fight between the accused and the informant. The fact that occurrence took place cannot be doubted but the manner in which prosecution has alleged the offence of murder against this appellant is definitely not substantiated. P.W.2 Narayan Sah is a hearsay witness as at para-1 though he narrates the quarrel and fight between the accused and his father and thereafter with the deceased and others but he has gone back to his house when the occurrence reportedly took place and he reached there on hearing the shouts. There he saw an arrow embedded in the abdomen of the victim. He denied having made any statement to the investigating officer. He had also seen the accused going to the police station with bleeding injury on his head. P.W.3 Ravi Kant Bhagat has not supported the prosecution case and denied any statement made before the police. P.W.4 Baraku Sah of the same village Lohandiya Bazar has also not supported the case of prosecution. He claims to have reached the place of occurrence upon hearing shouts and saw accused fighting with his father on the dispute of a drumstick tree where after they were separated by them and he went back to his home. 11. P.W.5 Jagdish Pd Sah is the brother-in-law of the deceased, who claims to be standing at his door when the deceased was standing underneath his door. At that moment he saw an arrow shot getting embedded in the left side of the abdomen of the victim having been shot by the accused Aklu Sah. He had not seen anyone else apart from the accused. At that moment he saw an arrow shot getting embedded in the left side of the abdomen of the victim having been shot by the accused Aklu Sah. He had not seen anyone else apart from the accused. According to this witness, the fardbeyan of victim was recorded at Mahagama Hospital where he was referred from Lalmatia P.S. He had also signed on the fardbeyan apart from P.W.12 Suresh Prasad Sah. In his cross-examination at para-3 he denies having noticed the presence of any other person when he was standing at his door and victim was standing underneath his door near the road when the arrow shot hit him. He says that he had not seen the shot actually being made but there was no other person apart from Aklu Sah, the accused. He saw the accused fleeing away but has denied having seen any injury on his head. According to this witness victim Ram Sakal Sah was not completely unconscious and till the time he reached Godda Hospital he was in full state of unconsciousness. He was taken to Mahagama Hospital from Lalmatia P.S. on the police jeep by the Officer-in-Charge along with the appellant. As per this witness apart from the victim and this witness, prosecution witness no.6 Sheo Shankar Sah, P.W.12 Suresh Pd. Sah, P.W.4 Baraku Sah and P.W.1 Naresh Sah along with the officer-in-charge were there on the jeep. The victim died after undergoing an emergency operation at Godda Sadar Hospital. According to this witness Aklu Sah had a bruise injury on his head. P.W.6 Sheo Shankar Sah has deposed as a hearsay witness, who reached the place of occurrence upon hearing the shout and was informed by P.W.12 Suresh Pd. Sah that accused had hit his father with a arrow shot. Nothing of significance has been brought on record through the evidence of this witness, who has also denied having given a statement before the police. P.W.7 Hira Lal Sah has completely denied any knowledge about the occurrence, as such prosecution has not been able to draw any support from his evidence. P.W. 8 Bhedan Sah is also hearsay witness of the same Lohandiya Bazar village, who also denied having made any statement before the police. P.W.9 Sumitra Devi is the widow of the victim and informant Ram Sakal Sah. P.W. 8 Bhedan Sah is also hearsay witness of the same Lohandiya Bazar village, who also denied having made any statement before the police. P.W.9 Sumitra Devi is the widow of the victim and informant Ram Sakal Sah. She had been at her maternal place when she was informed by her maternal brother about the incidence whereafter she returned to Lohandiya Bazar, her matrimonial home. After she reached Godda Hospital her husband died during treatment and she did not have any conversation with him. This witness does not improve the case of the prosecution beyond what the so-called eye witnesses have stated. 12. P.W.10 Dr. G. P. Pandey conducted the postmortem on the deadbody of victim Ram Sakal Sah on 07.06.1992 at 5.40 P.M. He has proved the postmortem report and marked as exhibit-3 and injuries nos.1 to 3 described hereunder: “1. Perforation of small intestine and adjacent mesentery (repaired) 2” long transversely. 2. Perforation of small intestine distal to 1 and adjacent mesentery (repaired) 1 1/2” by transversely. 3. Penetrating wound on right side of posterior abdominal wall 2” long 1” deep (repaired). Head-Haematoma 2” x 1 1/2” on front of head. On opening the small blood collection was present in anterior cranial fossa and left anterior lobe of brain was contused.” In the opinion of the doctor, injuries nos. 1 to 3 were caused by sharp penetrating weapon such as arrow, which caused haemorrhage and shock as a result of which death ensued. He has also reported one injury on the head caused by hard and blunt substance. Learned counsel for the appellant submits that the prosecution has no case of assault by any hard and blunt substance on the head of the victim. By referring to the deposition of P.W.11 Dr. Satendra Mishra, it is submitted that his evidence is of no significance and nothing conspicuous has been brought on record through his testimony. Learned counsel for the appellant has also placed the evidence of P.W.12 Suresh Prasad Sah, the other son of the victim Ram Sakal Sah who has deposed as an eye-witness. It is submitted that a perusal of his evidence in chief would show that there was a sudden quarrel between the accused and his father in relation to the drumstick tree and victim Ram Sakal Sah intervened to separate them. It is submitted that a perusal of his evidence in chief would show that there was a sudden quarrel between the accused and his father in relation to the drumstick tree and victim Ram Sakal Sah intervened to separate them. Thereafter the other accused Ram Bilash, brother of the present appellant also abused his father and exhorted the appellant Aklu to kill him. It is only thereafter that the accused Aklu took out a bow-arrow from his house and shot an arrow which hit the abdomen of his father and rendered him unconscious. According to this witness P.W.2, P.W.4, P.W.5 and P.W.8 including P.W.1 have witnessed the occurrence. His statement at para-2 creates further doubt about the authenticity of the fardbeyan. Since he states that the fardbeyan of his father was recorded by Jamadar Suresh Singh as per his dictation. In his cross-examination at para-4, he has contradicted the testimony of the other so called eye-witness P.W.1, his own brother as according to this witness, his father regained consciousness only after reaching the Mahagama hospital. Further, he states that his father's fardbeyan was not recorded at Mahagama P.S. At Mahagama Hospital his father was given an injection whereafter he regained consciousness. Death occurred on 07.06.1992 at Godda Sadar Hospital. 13. Learned counsel for the appellant has further submitted that P.W.13, the Investigating Officer has described the place of occurrence at para-2 which shows that the house of the accused and the deceased were on the Southern and Northern side of the place of occurrence. There is no dispute that the appellant is the nephew of the victim and that there was no pre-existing enmity between the two or their families. Though the Investigating Officer at para-4 of his deposition claims to have recorded the statement of several witnesses such as P.W.4 Baraku Sah, P.W.8 Bhedan Sah, P.W.9 Sumitra Devi, P.W.7 Hari Lal Sah, apart from P.W.5 Jagdish Pd. Sah and P.W.12 Suresh Prasad Sah who claim themselves to be eye-witness but several of these prosecution witnesses have denied during deposition as having stated anything before the police under section 161 of the CrPC. This witness has proved the seizure list (Exhibit-5) prepared in his handwriting and signature in the presence of P.W.12 and P.W.2. Sah and P.W.12 Suresh Prasad Sah who claim themselves to be eye-witness but several of these prosecution witnesses have denied during deposition as having stated anything before the police under section 161 of the CrPC. This witness has proved the seizure list (Exhibit-5) prepared in his handwriting and signature in the presence of P.W.12 and P.W.2. This witness at para-9 states that the fardbeyan was recorded at Town P.S. after the death of the victim and fardbeyan was of Suresh Prasad Sah i.e. P.W.12. The doubt about the authenticity of the fardbeyan is confirmed by the evidence of P.W.13. He has also proved the material Exhibit-1, the arrow recovered by Dr. Satendra Mishra (P.W.11) from the abdomen of the victim marked as Exhibit-1. He has also proved the inquest report prepared in the hand-writing of Sub-Inspector Bhagwan Singh, Godda P.S. marked as Exhibit-6. 14. Learned counsel for the appellant while summarising his submissions has sought to bring the case of the appellant under exception-4 of section 300 of the IPC. He submits that all the four ingredients of exception (a) that the incident happened 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; are fully made out in favour of the appellant to escape the rigors of his conviction under the charge of section 300 of the IPC which should be modified to one under section 304 Part-II of the IPC. Learned counsel for the appellant has during the course of submission, however not been able to dent the prosecution case so far as the time and place of occurrence and the involvement of the present appellant is concerned, since the prosecution evidence also shows that the appellant had sustained injuries on his head as a result of the sudden fight and had accompanied the victim up to the hospital. It is submitted that his conduct proves that there was no intention to kill since there was no previous enmity, motive or grudge against the victim who had only tried to save his brother Doman Sah by intervening in the fight between the accused and his own father Doman Sah. It is submitted that his conduct proves that there was no intention to kill since there was no previous enmity, motive or grudge against the victim who had only tried to save his brother Doman Sah by intervening in the fight between the accused and his own father Doman Sah. In such a case, the conviction deserves to be altered to one under section 304 Part II of the IPC and the appellant should be allowed to let go with a minor punishment as period undergone. 15. Learned counsel for the State has argued in defence of the impugned findings. According to him, the evidence on record is such that the charge of murder is proved beyond any reasonable doubt. Learned trial court has considered the case of the parties and on appreciation of the entire prosecution evidence rightly held the appellant guilty for the charge of murder though there was little evidence as against the other co-accused Ram Bilash Sah, brother of the appellant. Evidence of eye-witnesses P.W.1 Naresh Prasad Sah, P.W.5 Jagdish Prasad Sah and P.W.12 Suresh Prasad Sah are consistent on the point of time of occurrence, place of occurrence and the manner of occurrence, despite minor inconsistencies about the state of consciousness of the victim and the place where the fardbeyan was recorded. However, if the evidence is read in entirety there is no doubt about the authenticity of the fardbeyan as corroborative evidence adduced during trial including the injuries found on the head of the appellant leave no room of doubt that such an occurrence took place and the victim (the own uncle of the appellant) died as a result of arrow injury in his abdomen. The occurrence took place at 7.00 P.M. in the night and right in between the houses of the accused and the deceased. The injuries have been duly proved by the Medical Officer (P.W.11) who conducted the post-mortem. Three injuries by piercing weapon have been found on the victim which were proved to be sufficient to cause death in ordinary course of circumstances. Therefore all the ingredients of Section 300 IPC thirdly are duly established. The appellant intended to cause such a bodily injury and the bodily injury so caused were found to be sufficient to cause death in the ordinary course of circumstances. Therefore all the ingredients of Section 300 IPC thirdly are duly established. The appellant intended to cause such a bodily injury and the bodily injury so caused were found to be sufficient to cause death in the ordinary course of circumstances. Appellant cannot take the benefit of exception 4 under Section 300 IPC since there was no case of fight as the victim had only intervened in the fight between the accused and his father and all around the appellant was the aggressor. Even after the appellant was separated from his father with the intervention of the victim, he did not spare the victim and went inside with sufficient time to think over and then came back armed with a bow and arrow and inflicted the arrow injury on a vital part of the body of the victim which led to his death within 24 hours. If the provocation has been voluntarily sought and there is absence of any aggression from the other side, appellant cannot deserve the benefit of exception 4 under Section 300 IPC. The impugned conviction and the sentence of life imprisonment awarded upon the appellant is thus in consonance with the evidence on record and the law applicable to the facts and circumstances of the case. The appeal is devoid of merit. Therefore, it should be dismissed. 16. We have given anxious consideration to the submissions of learned counsel for the parties and also re-appreciated the entire materials on record as a court of appeal which include the fardbeyan, framing of charge, evidence of 13 prosecution witnesses, six prosecution exhibits, one material exhibit, the statement of the accused under section 313 of the CrPC. We have also gone through the findings recorded by the learned trial court in the impugned judgment of conviction and order of sentence. On a conspectus of facts and circumstances revealed on the basis of the evidence brought on record by the prosecution, we notice certain distinct features of the instant case: (i) Evidence of prosecution witness no. 1, 5 and 12 do not leave any room of doubt that such an occurrence took place at the given time 7.00 P.M. at the place of occurrence i.e. described by the Investigating Officer (P.W.13) being between the house of the accused and the victim who were related as nephew and uncle. 1, 5 and 12 do not leave any room of doubt that such an occurrence took place at the given time 7.00 P.M. at the place of occurrence i.e. described by the Investigating Officer (P.W.13) being between the house of the accused and the victim who were related as nephew and uncle. (ii) It is neither a matter of conjecture that the occurrence was preceded by a quarrel between the accused/appellant and his father Doman Sah over a dispute of drumstick tree. The victim Ram Sakal Sah, brother of Doman Sah and uncle of this appellant and a next door neighbour intervened to separate the father and the son and in fact succeeded. (iii) Intervention of the victim Ram Sakal Sah in the quarrel between the accused and his father Doman Sah did not end up in peace as abuses and fisticuffs appear to have been hurled by the appellant even thereafter. (iv) The narrative described by the victim and informant Ram Sakal Sah shows that the appellant in a fit of rage went inside his house abusing and came back immediately armed with a bow and arrow to the door of the victim where there was exchange of heated words between the two. At this stage if we take into account the statement of eye-witness P.W.1 and P.W.5 both, it is evident that the appellant also had sustained injuries on his head. Injuries on the head of the appellant, itself shows act of aggression from the other party. Thus, the verbal altercation between the two continued from before between the appellant and his father had not dried on and aggravated to a stage of sudden fight with the victim. In the entire narrative of the prosecution case as noted herein above, absence of any pre-existing enmity between the appellant and the victim or their families is completely ruled out. P.W.1, son of the informant has made specific statements to that effect at para-6 of his cross-examination while no other prosecution witness has averred about any pre-existing dispute including P.W.5, P.W.12, the other two eye-witnesses. (v) there could not have been a previous enmity manifestly as the victim had tried to intervene in the fight between the appellant and his father Doman Sah. (v) there could not have been a previous enmity manifestly as the victim had tried to intervene in the fight between the appellant and his father Doman Sah. In the quarrel between the appellant and his father, who was the wrong party or who was the right party is not apparent from the evidence on record. Victim seems to have intervened in the quarrel between appellant and his father. Thereafter, the verbal altercation and resultant abuses graduated into a sudden fight with the victim Ram Sakal Sah also. In case of a sudden fight, there are mutual provocation and blows from each side and 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 indeed. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. (vi) In the sequence of events happening in very close proximity as per the prosecution case also, appellant in a fit of rage took out bow and arrow from his house and inflicted a single arrow shot on the abdomen of the victim which proved to be fatal. 17. Taking all the facts and circumstances together, it appeals to the judicial conscience of this Court that the appellant in a heat of passion in a sudden fight upon a sudden quarrel without any premeditation or resorting to any undue advantage or acting in a cruel or unusual manner caused a single arrow injury on the abdomen of the deceased (victim) which proved to be his nemesis. Though the injury described by the Medical officer P.W.10 as noted above go to show that they caused haemorrhage and shock which was the cause of death but the facts and circumstances of the case taken in entirety including the subsequent conduct of the appellant brings the case of the appellant under the scope of exception 4 under section 300 IPC. The principles of law as regards the applicability of the exception-4 rendered in the case of Manoj Kumar vs. State of Himachal Pradesh and analogous cases as reported in (2018) 7 SCC 327 , para- 26 to 28 and 30 are quoted hereunder:- “26. Exception 4 to Section 300 IPC reads as under: “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’s having taken undue advantage or acted in a cruel or unusual manner.” 27. There is no dispute about the ingredients of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: (i) that the incident happened without premeditation; (ii) in a sudden fight; (iii) in the heat of passion; (iv) upon a sudden quarrel; and (v) without the offender having taken undue advantage or acted in a cruel or unusual manner. 28. It may be relevant to note that in Sridhar Bhuyan v. State of Orissa, it was held as under: (SCC pp. 396-97, paras 7-8) “7. 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. 8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of the 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 a cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage”.” 30. In Camilo Vaz v. State of Goa, referring to the ambit of Section 304 of the Code, this Court in similar set of circumstances held thus: (SCC p. 9, para 14) “14. This section is in two parts. If analysed, the section provides for two kinds of punishment to two different situations: (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here the important ingredient is the “intention”; (2) if the act is done with the knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person heats another with a danda on a vital part of the body with such force that the person heat meets his death, knowledge has to be imputed to the accused. In that situation the case will fall in Part II of Section 304 IPC as in the present case.” (emphasis supplied not part of original text) 18. Having regard to the discussion made herein above and the reasons recorded, we are satisfied that the conviction under section 302 of the IPC rendered by the learned trial court deserves to be set aside and modified to one under section 304 Part II of the IPC. 19. Accordingly, he is sentenced to undergo imprisonment for a period of 5 years with a fine of Rs. 50,000/-. The fine amount be deposited within a period of eight weeks from today, before the learned trial court to be payable to the legal heirs of the victim upon proper identification. 19. Accordingly, he is sentenced to undergo imprisonment for a period of 5 years with a fine of Rs. 50,000/-. The fine amount be deposited within a period of eight weeks from today, before the learned trial court to be payable to the legal heirs of the victim upon proper identification. In default whereof, he would suffer further three months of simple imprisonment. The appellant is stated to have served custody for about four years and two months. 20. The appeal is partly allowed in the manner and to the extent indicated herein above. 21. The appellant who is on bail, his bail bond is hereby cancelled and he is directed to surrender and serve out the remainder of his sentence. 22. Let the lower court record be sent down to the court concerned along with a copy of this judgment. Appeal partly allowed.