ORDER : Shree Chandrashekhar, J. Two persons, namely, Sawana Nagesia and Bandhanu Nagesia were named as accused by the informant in his fardbeyan, which was recorded on 17th November, 2006 at about 17:30 hours, on the basis of which Palkot P.S. Case No. 70 of 2006 has been lodged against them under Section 302/34 I.P.C. 2. The appellants, namely, Sawana Nagesia and Bandhanu Nagesia have been convicted and sentenced to R.I. for life with fine of Rs.5,000/- each under Section 302/34 I.P.C.; no charge under Section 302 I.P.C. was framed against Sawana Nagesia. 3. Vide order dated 07th October, 2014, the appellant no. 2, namely, Bandhanu Nagesia has been released on bail. 4. During the trial, the prosecution has examined six witnesses; the wife of the deceased, namely, Jiro Devi (P.W.1), the daughter of the deceased, namely, Sukri Kumari-P.W.2 and son of the deceased, namely, Hiru Pradhan-P.W. (4) have been projected by the prosecution as eyewitnesses. 5. Dr. Sugendra Say, who has been examined as P.W. 5, has found the following injuries on Mangru @ Kodhi Pradhan : “Crushed lacerated wound 8” x 2” x brain deep over right side of skull with fracture of almost all cranial bone. Brain walls sprouted out of the wound. Blood clot present in cranial cavity. Brain was lacerated.” 6. According to the Doctor, the injury on Mangru @ Kodhi Pradhan was ante-mortem in nature. It was a grievous injury caused by a heavy stone. 7. During the trial, the Investigating Officer has been examined as P.W.-6. He has stated in the Court that he has prepared seizure memo of the blood-stained earth and the blood-stained stone. He has prepared a site plan of the place of occurrence. In his cross-examination, to a suggestion from the defence regarding the source of information, he says that such fact may be written in the Station Diary. He has admitted that on the previous day, a raid was conducted in the village against the extremists. He says that he has reached the place of occurrence at about 5:30 in the evening of 17th November, 2006. 8. The informant is the son of Mangru @ Kodhi Pradhan, the deceased. In his fardbeyan, he has stated that there was a long standing land dispute between his father and the accused persons, namely, Sawana Nagesia and Bandhanu Nagesia. The accused persons for that reason had issued threats to his father. 8. The informant is the son of Mangru @ Kodhi Pradhan, the deceased. In his fardbeyan, he has stated that there was a long standing land dispute between his father and the accused persons, namely, Sawana Nagesia and Bandhanu Nagesia. The accused persons for that reason had issued threats to his father. On 17th November, 2006, in the evening at about 4:30, both the accused persons came to his house and started a quarrel. When his father and mother objected to them the accused persons started assaulting his mother and when his father intervened to save her, the accused persons caught hold of his father and thrashed him on the ground. Sawana Nagesia picked up a stone and hit his father on his head, due to which his father died on the spot. On raising ‘hulla’, when the villagers came there the accused persons fled away. 9. In the Court, the informant has narrated a similar story about the incident that has happened on the fateful day. He has stated about the quarrel between the accused persons and his mother and when his father came there they caught hold of him and took him outside the house. He has reiterated that the accused persons had thrashed his father on the ground and Sawana Nagesia picked up a stone and hit his father on his head. The prosecution witness, namely, Jiro Devi-P.W.-1 is also an eye-witness. The learned Sessions Judge has relied on the testimony of these witnesses. 10. We find that the narration of the incident by P.W.-1 and P.W.-4 is corroborated by the medical evidence. P.W.-1 and P.W.-4, both have consistently deposed that the appellant no. 1, namely, Sawana Nagesia picked up a stone and hit Mangru @ Kodhi Pradhan on his head with the stone due to which he has died. 11. In the aforesaid facts, the assault by Sawana Nagesia on Mangru @ Kodhi Pradhan by a stone must be held proved by the prosecution. 12. However, conviction of the appellant no. 2, namely, Bandhanu Nagesia with the aid of Section 34 I.P.C. is not sustainable in law. In fact, on the basis of the evidences led by the prosecution in S.T. Case No. 67 of 2007, the appellant no. 1, namely, Sawana Nagesia also cannot be convicted under Section 302 I.P.C. Except that Bandhanu Nagesia, the appellant no. 2, namely, Bandhanu Nagesia with the aid of Section 34 I.P.C. is not sustainable in law. In fact, on the basis of the evidences led by the prosecution in S.T. Case No. 67 of 2007, the appellant no. 1, namely, Sawana Nagesia also cannot be convicted under Section 302 I.P.C. Except that Bandhanu Nagesia, the appellant no. 2, had accompanied Sawana Nagesia and there was a quarrel between the mother of the informant and the appellants and both of them had dragged Mangru @ Kodhi Pradhan out of his house, the prosecution has failed to lead any evidence on the participation of Bandhanu Nagesia in the occurrence. Mere presence of Bandhanu Nagesia at the place of occurrence and at the time of occurrence would not fasten the liability upon him for causing death of Mangru @ Kodhi Pradhan. In our opinion, the prosecution has miserably failed to prove that death of Mangru @ Kodhi Pradhan has been caused in furtherance of common intention of both the appellants. May be the appellant no. 2, namely, Bandhanu Nagesia also intended to start a quarrel with the family of the informant, on the basis of the evidences which were led by the prosecution it cannot be inferred that he had also shared common intention with Sawana Nagesia to cause death of Mangru @ Kodhi Pradhan. 13. In the above facts, conviction of the appellant no. 2, namely, Bandhanu Nagesia under Section 302/34 I.P.C. and the sentence of R.I. for life with fine of Rs.5,000/- inflicted upon him for the said offence are set aside. The appellant no. 2, namely, Bandhanu Nagesia is acquitted of the charge under Section 302/34 I.P.C framed against him in S.T. Case No. 67 of 2007. 14. He is on bail and, accordingly, he shall be discharged of the liability of the bail-bonds furnished by him. 15. Insofar as conviction of the appellant no. 1, namely, Sawana Nagesia under Section 302/34 I.P.C is concerned, in view of the following facts we hold that he is entitled for the benefit under Exception 4 to Section 300 I.P.C : (i) There was a quarrel between the appellants and the mother of the informant at the first instance and at that juncture, father of the informant, the deceased, was not in the picture. On such fact, it can be safely inferred that the appellant no. On such fact, it can be safely inferred that the appellant no. 1, namely, Sawana Nagesia had no intention to murder Mangru @ Kodhi Pradhan. (ii) It has come on record that Sawana Nagesia was not armed with any weapon. He came to the house of the informant and picked up a stone from the place of occurrence and hit Mangru @ Kodhi Pradhan on his head. This fact would demonstrate that there was no pre-meditation and since there was no repeated assault by the appellant upon Mangru @ Kodhi Pradhan, it can be safely concluded that he has not acted with cruelty or in an unusual manner. 16. In the case of “Sridhar Bhuyan Vs. State of Orissa” reported in (2004) 11 SCC 395 , the scope of Exception 4 to Section 300 I.P.C. has been dealt with by the Hon’ble Supreme Court, thus : “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 sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A “sudden fight” implies mutual provocation and blows on each side. 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. 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”. 17. In Rambir Vs. State of NCT, Delhi (Criminal Appeal No.839 of 2019), at Para-14 of the judgment the Hon’ble Supreme Court has held thus: “14. 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”. 17. In Rambir Vs. State of NCT, Delhi (Criminal Appeal No.839 of 2019), at Para-14 of the judgment the Hon’ble Supreme Court has held thus: “14. Having regard to evidence on record, we are of the view that the case of the appellant falls within Exception 4 to Section 300 IPC. Further, the judgment in the case of Surinder Kumar v. Union Territory, Chandigarh also supports the case of the appellant. In the aforesaid case, the knife blows were inflicted in the heat of the moment, one of which caused death of the deceased, this Court has held that accused is entitled to the benefit of Exception 4. In the aforesaid judgment, this Court further held that in a sudden quarrel, if a person, in the heat of the moment, picks up a weapon which is handy and causes injuries one of which proves fatal, accused would be entitled to the benefit of Exception 4. We are of the view that the said judgment supports the case of the appellant and further having regard to evidence on record we are of the view that all the four ingredients which are required to extend the benefit of Exception 4 to Section 300 IPC, apply to the facts of the case on hand. Since the occurrence in sudden quarrel and there was no premeditation, the act of the appellant-accused would fall under Exception 4 to Section 300 IPC. As such, the conviction recorded against the appellant under Section 302 IPC is liable to be set aside and is accordingly set aside and the conviction of the appellant-accused under Section 302 IPC is modified, as the one under Section 304 Part II, IPC and we impose a sentence of 10 years’ simple imprisonment on the accused”. 18. It has come on record through the prosecution’s evidence that the appellant, namely, Sawana Nagesia without any pre-meditation upon a sudden quarrel gave a stone blow on the head of Mangru @ Kodhi Pradhan in the heat of passion. Therefore, we hold that Sawana Nagesia is entitled for the benefit under Exception-4 to Section 300 IPC. 18. It has come on record through the prosecution’s evidence that the appellant, namely, Sawana Nagesia without any pre-meditation upon a sudden quarrel gave a stone blow on the head of Mangru @ Kodhi Pradhan in the heat of passion. Therefore, we hold that Sawana Nagesia is entitled for the benefit under Exception-4 to Section 300 IPC. Accordingly, the judgment of conviction and the order of sentence of R.I. for life dated 25.2.2013 with fine of Rs. 5,000/- against the appellant no. 1, namely, Sawana Nagesia by the Principal Sessions Judge, Gumla passed in S.T. Case No.67 of 2007 are set-aside. However, the appellant No.1, namely, Sawana Nagesia is convicted and sentenced to R.I. for ten years under Section 304 Part-1 IPC. 19. The report produced by the learned APP would disclose that the appellant no.1, namely, Sawana Nagesia is in custody for more than 12 years. 20. Accordingly, the appellant no.1, namely, Sawana Nagesia shall be set free forthwith, if not wanted in connection with any other case. 21. In the result, the Criminal Appeal (D.B.) No. 337 of 2013 qua the appellant no. 2, namely, Bandhanu Nagesia is allowed and qua the appellant No.1, namely, Sawana Nagesia is partly allowed.