JUDGMENT : A.C. RAO, J. 1. The present Criminal Appeals Nos.1112 of 2016 and 349 of 2017 have been preferred by the appellants – original accused Nos.2 and 1 respectively, under Section 374(2) of the Code of Criminal Procedure, 1973, challenging the legality, validity and propriety of the judgment and order of conviction and sentence dated 23rd June 2016 passed by the 3rd Additional Sessions Judge, Godhra, in the Sessions Case No.123 of 2015. 2. By the said judgment, the trial court convicted the appellants herein - original accused Nos.2 and 1 respectively, for the offences punishable under Section 302 read with Section 114 of the Indian Penal Code, 1860, and sentenced them to undergo life imprisonment with fine of Rs.10,000/- each; and in default of payment of the amount of fine, to further undergo rigorous imprisonment for a period of six months. The Sessions Judge was pleased to grant benefit of set-off as per Section 428 of the Code of Criminal Procedure for the period during which the accused remained in jail as under-trial prisoners. I. CASE OF THE PROSECUTION : 3. The complainant Nishar Ahemad Hasan Mamji lodged a complaint at the Godhra Town B-Division Police Station on 6/5/2015 stating that on 4/5/2015 in the evening, while he was entering his home from Bhamaiya, at that time, he had seen a mob of people on the street at the Aman Guest House, Singal Faliya, Godhra. A scuffle was going on, therefore, he stopped there. He saw that his brother Mohsin Hasan Mamji was near the F.C.I. Godown. Kasim Biryani, a resident of Godhra Singal Faliya was abusing his brother and demanding to return his five hundred rupees. By saying so, Kasim inflicted one iron pipe blow on the right leg of his brother Mohsin. At that time, Badshah Biryani, a resident of Satpul, Godhra, was also abusing and he also inflicted a stick blow on the left leg ankle of his brother. He further stated that his brother Mohsin Hasan Mamji was beaten by fist blows by both the accused. He stated that the incident had occurred at about 9.30 p.m. He further stated that he inquired from his brother the reason for the assault. His brother informed him that he had borrowed Rs.500 from Kasim Biryani and Kasim was demanding the said amount. But he had no money, so the accused had beaten him. He stated that the incident had occurred at about 9.30 p.m. He further stated that he inquired from his brother the reason for the assault. His brother informed him that he had borrowed Rs.500 from Kasim Biryani and Kasim was demanding the said amount. But he had no money, so the accused had beaten him. It is stated by the complainant that thereafter his brother was taken to the hospital by Yamin Biryani and Mohsin Yusuf Mamji. A complaint was filed in the Civil Hospital Godhra. During the treatment, the deceased died on 11/5/2015 and, therefore, subsequently the offence under Section 302 of IPC came to be added. The aforesaid complaint was registered with the Godhra Town B-Division Police Station as the being I-CR No.32 of 2015 for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code. 4. After the registration of the FIR, the Investigating Officer started with the investigation, prepared the panchnama of the place of the occurrence, prepared the inquest panchnama, sent the dead-body of the deceased for the postmortem, recorded the statements of the witnesses, recovered the muddamal and sent the samples collected to the FSL for analysis. 5. During the course of the investigation, it was found that the accused Kasim Biryani and the accused No.2 Badshah Biryani caused injury to the deceased Mohsin Hasan Mamji with iron pipe and stick and, thereafter, when the mob was gathered, they had run away and the brother of the accused No.1, namely Yasin Abdul Ganjiya, took the deceased Mohsin to the Civil Hospital, Godhra, in a rickshaw and admitted him in the hospital. At that time the deceased was unconscious. At that time, Yasin Abdul Ganjiya, the brother of the accused No.1 informed the doctor that it is an accident case, and thereby he mislead the Doctor. Mr. N.V. Patel, the Investigating Officer forwarded a report for taking action against Yasin Abdul Ganjiya, resident of Singal Faliya, Godhra, for the offence under Section 182 of the Code of Criminal Procedure. 6. On completion of the investigation, there was sufficient evidence against the accused, therefore, the Investigating Officer filed the charge-sheet under Section 173(2) of the Code of Criminal Procedure in the Court of the learned Chief Judicial Magistrate, Godhra, against both the accused, thereupon the case was registered as the Criminal Case No.1421 of 2015. 7. 6. On completion of the investigation, there was sufficient evidence against the accused, therefore, the Investigating Officer filed the charge-sheet under Section 173(2) of the Code of Criminal Procedure in the Court of the learned Chief Judicial Magistrate, Godhra, against both the accused, thereupon the case was registered as the Criminal Case No.1421 of 2015. 7. As the case was exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of Sessions under Section 209 of the Code and the case was re-registered as the Sessions Case No.123 of 2015 in the Court of the Sessions Judge, Godhra. 8. Thereafter, the Sessions Court framed the charge vide Exh.3 against the accused under Section 228(1)(B) of the Code for the offences punishable under Sections 302 read with Section 114 of the Indian Penal Code and the plea of the accused persons was recorded under Section 228(2) of the Code vide Exhibits 4 and 5. 9. The accused did not admit the charge and claimed to be tried. Therefore, the trial court conducted the trial in accordance with law. 10. The prosecution adduced the following oral as well as documentary evidence in support of its case : : ORAL EVIDENCE : PW No. Exh. 9. The accused did not admit the charge and claimed to be tried. Therefore, the trial court conducted the trial in accordance with law. 10. The prosecution adduced the following oral as well as documentary evidence in support of its case : : ORAL EVIDENCE : PW No. Exh. No. Particulars Remarks 1 10 Nishar Ahemad Hasan Mamji Complainant 2 13 Anas Soyeb Hayat Panch Witness 3 17 Juned Ibrahim Huri Panch Witness 4 19 Mohammad Abdul Rahim Bhana Panch Witness 5 21 Maksud Suleman Hayat Panch Witness 6 30 Ishak Mohammad Pataliya Panch Witness 7 31 Bhiyaji Vajaji Marwadi Panch Witness 8 35 Kamlesh Bhagvandas Dhanvani Panch Witness 9 36 Dr.Chetankumar Roshanlal Jain Witness 10 38 Upendra Bishriprasad Varma Witness 11 42 Siraj Ahemad Kalandar Witness 12 43 Aabeda Hasan Mamji Witness 13 46 Imran Yusuf Hayat Witness 14 47 Mohsin Yusuf Mamji Witness 15 48 Siddik Mohammad-Hanif Mithathe Witness 15 48 Siddik Mohammad-Hanif Mithathe Witness 16 49 Ratusinh Biharisinh ASI/Witness 17 51 A.A. Pathan PSI/Witness 18 52 Mohammad Naushad Alam Witness 19 53 Yamin Abdul-Sattar Gaji Witness : DOCUMENTARY EVIDENCE : Sr.No. Exh.No. Particulars 1 11 FIR 2 14 Panchnama of the condition of the body of the accused 3 15-16 Paper Slip 4 20 Panchnama of the place of offence 5 23 to 25 Paper Slips 6 26 Inquest Panchnama 7 27 Clothes of the deceased 8 32 Paper slip 9 33 Panchnama u/s.27 10 37 Postmortem Note 11 40 Yadi 12 50 Depute Order 13 57 Depute Order 14 58 Reminder 15 59 Complaint u/s.182 16 60 Sanction u/s.155(2) 17 61 FSL Yadi 18 62 FSL Report 19 63 Serology Report 20 64 Report for addition of offence u/s 302 21 65 Receipt of FSL 22 66 Dispatch Note Police Yadi 23 68 Telephone Vardhi 24 69 Inquest Form 25 70 Receipt for handing over dead-body of the deceased 11. After conclusion of the trial, the learned 3rd Additional Sessions Judge, Godhra, convicted both the accused – appellants herein for the offences enumerated above and sentenced them to undergo life imprisonment with fine, as aforesaid. 12. Being dissatisfied with the judgment and order of conviction and sentence passed by the learned Sessions Judge, both the accused have preferred the present Appeals challenging the impugned judgment and order of conviction and sentence. II. SUBMISSIONS ON BEHALF OF THE APPELLANTSACCUSED : 13. Mr. 12. Being dissatisfied with the judgment and order of conviction and sentence passed by the learned Sessions Judge, both the accused have preferred the present Appeals challenging the impugned judgment and order of conviction and sentence. II. SUBMISSIONS ON BEHALF OF THE APPELLANTSACCUSED : 13. Mr. Amir Pathan, the learned counsel appearing for Mr. Ashish Dagli, the learned counsel appearing for the appellants herein – original accused No.2 in the Criminal Appeal No.1112 of 2016 and the original accused No.1 in the Criminal Appeal No.349 of 2017, has made the following submissions : [1] The trial court erred in convicting the appellant for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and imposing the sentence of life imprisonment. The trial court failed to appreciate that the case against the appellants is not proved beyond reasonable doubt. Though there is no cogent, convincing, reliable and sufficient evidence to convict the appellant, the trial court has convicted the accused misinterpreting the evidence on record. He submitted that the conviction is against the evidence on record, against the provision of law and against the settled legal position, therefore, it cannot be sustained. [2] The trial court failed to consider the fact that there is no injury on the vital part of the body and the deceased has died due to lack of providing proper medical treatment to the deceased. [3] The trial court failed to consider the fact that there is only one eye witness, i.e. PW-11 – Siraj Ahmed Kalandar. The said sole eye witness is not an independent witness but is an interested witness and is a relative of the complainant, therefore, his deposition could not be relied upon. The said witness, in his statement before the police, stated that he has not seen the incident and he did not know about it. But, in his deposition before the court, he has narrated the incident as an eye witness. Thus, there are major contradictions between his statement before the police and deposition before the court. However, the trial court has erred in convicting both the accused relying on the deposition of the PW-11. But, in his deposition before the court, he has narrated the incident as an eye witness. Thus, there are major contradictions between his statement before the police and deposition before the court. However, the trial court has erred in convicting both the accused relying on the deposition of the PW-11. [4] The trial court failed to appreciate the fact that there is recovery of a stick from the appellant and there is no possibility of giving blows on the vital part of the body which would have caused the death of the deceased. Even as per the deposition of the PW-9 Dr. Chetankumar Jain (Exh.36), who had performed the postmortem of the deceased, there were six injuries mainly abrasions on both the legs and left hand and multiple fracture on the left leg, however, there was no injury on the vital part of the deceased viz. head, heart, lungs, stomach. [5] The trial court failed to appreciate the fact that most of the witnesses have not supported the case of the prosecution. [6] The trial court failed to appreciate the fact that the trial court erred in relying upon the deposition of the complainant even though his deposition is not corroborated by the deposition of other prosecution witnesses. [7] The trial court failed to appreciate the fact that though as per the prosecution case, there was mob, the Investigating Officer has not recorded statements of any independent witnesses and the entire investigation is faulty. [8] The trial court has taken moral view instead of legal view while passing the order of conviction and sentence. [9] The trial court has failed to consider the defence of the accused in its true spirit. [10] The incident occurred on 4/5/2015 at around 21.30 hours and the complaint came to be lodged on 6/5/2015 at around 18.00 hours. The prosecution has failed to give any satisfactory reason for such an inordinate delay. [11] The trial court failed to appreciate that the injury was on the leg and not on the vital part of the body and there was no intention on the part of the accused to kill the deceased, therefore, the trial court could not have convicted the appellants for the offence under Section 302. At the best, the trial court could have convicted the appellant for the offence under Section 304 Part-II. 14. At the best, the trial court could have convicted the appellant for the offence under Section 304 Part-II. 14. In such circumstances referred to above, the learned counsel appearing for the appellants-accused prayed to quash and set aside the impugned judgment and order of conviction. The learned counsel, in the alternative, submitted that if this Court is of the opinion that some punishment is to be imposed upon both the appellants for the offence under Section 304 Part- II, then the sentence of life imprisonment may be reduced to five years. III. SUBMISSIONS ON BEHALF OF THE STATE : 15. Both these Appeals are opposed by Mr. Himanshu Patel, the learned APP appearing for the State. He submitted that the prosecution has successfully proved the case beyond reasonable doubt. He further submitted that the prosecution witnesses have supported the case of the prosecution and their evidence are corroborated by the medical evidence. He submitted that the judgment and order of conviction and sentence passed by the trial court is on appreciation of evidence and the same is passed based on the evidence on record. He submitted that the offence under Section 302 read with Section 114 of the Indian Penal Code has been proved by the prosecution against both the accused by leading cogent and convincing evidence. He submitted that no error, not to speak of any error of law, could be said to have been committed by the trial court in convicting both the appellants for the offence punishable under Section 302 of the Indian Penal code and imposing the sentence of life imprisonment upon the appellants-accused. 16. Mr. Patel, the learned APP, submitted that the prosecution has proved that both the accused, in collusion with each other, caused injuries to the deceased with a common intention to cause his death and the injuries caused by the accused are sufficient to have caused the death of the deceased. 17. Mr. Patel further submitted that from the evidence of the PW-9 Dr. Chetankumar Roshanlal Jain, (Exh.37), it has been established that there was fracture of tibia fibula of the right leg admeasuring 3 cm x 2 cm and there were multiple fractures on the paw of the left leg of the deceased. There were, in all, seven injuries. 17. Mr. Patel further submitted that from the evidence of the PW-9 Dr. Chetankumar Roshanlal Jain, (Exh.37), it has been established that there was fracture of tibia fibula of the right leg admeasuring 3 cm x 2 cm and there were multiple fractures on the paw of the left leg of the deceased. There were, in all, seven injuries. Even as per the injury certificate Exh.39 issued by an independent witness (Doctor), it is clear that there were fracture of tibia fibula. Thus, the accused brutally beaten the deceased, and as a result of the injuries, the deceased died. He submitted that there is no reason to discard the deposition of the Doctor, who is an independent witness. 18. Mr. Patel submitted that as per the deposition of the Doctor (PW-9), the cause of death assigned is cardio-respiratory failure due to multiple injuries. As per the Doctor, the injuries were grave in nature and were sufficient to cause death. 19. Mr. Patel submitted that as per the deposition of the Doctor (PW-9), the injuries on the body of the deceased are possible with the muddamal iron pipe and stick. 20. Mr. Patel submitted that the PW-11, namely Siraj Ahmed Kalandar, who has been examined at Exh.42, has supported the case of the prosecution. He is an eye witness. Merely because he is a relative of the deceased, his evidence cannot be discarded. The law is that the deposition of the interested witness is to be considered minutely. The defence could not carve out anything from the cross examination of the complainant which can help the appellants to rescue him. He submitted that as per the settled legal position, the accused can be convicted even on the basis of the deposition of one witness alone, and for convicting the accused, number of witnesses are not required. It is not law that no court can convict any accused on the basis of the deposition of a solitary witness. He submitted that the deposition of the PW-11 – Siraj Ahmed is clear, convincing and sufficient to convict the appellants for the offence punishable under Section 302 read with Section 114 of the Indian Penal Code. 21. Mr. Patel further submitted that the conduct of both the accused is also self explanatory. Both the accused, after commission of the offence, ran away from the place of the offence. 21. Mr. Patel further submitted that the conduct of both the accused is also self explanatory. Both the accused, after commission of the offence, ran away from the place of the offence. He submitted that the presence of both the appellants-accused and the injury caused by them to the deceased have been proved and established beyond reasonable doubt. 22. Mr. Patel submitted that the accused No.2 was demanding Rs.500 from the deceased and as the deceased could not pay him the said amount, both the accused caused serious injuries with iron pipe and stick, as a result of which the deceased died. Over and above, the presence and active participation, the motive to commit the offence and the reason for commission of the offence by the accused are proved and established beyond reasonable doubt by leading cogent and convincing evidence. 23. Heard the learned counsel for the respective parties at length and perused the impugned judgment and order of conviction and sentence and considered the evidence on record. 24. In such circumstances, Mr. Patel, the learned APP appearing for the State, submitted that no interference is warranted in these Appeals, and there being no merit in these Appeals, the same deserve to be dismissed. 25. On consideration of the overall evidence on record, the following facts emerge :- (1) The PW-1 Nishar Ahemad Hasan Mamji, the complainant, has been examined at Exh.10. It appears that he had not seen the incident. He has not supported the case of the prosecution and is declared hostile. (2) All the panch-witnesses, viz. the PW-12 (Exh.42), the PW-13 (Exh.46), the PW-14 (Exh.47), the PW-15 (Exh.48), the PW-18 (Exh.58) and the PW-19 (Exh.53), have turned hostile. (3) The PW-11 Siraj Ahemad Kalandar, who has been examined at Exh.42 is the sole eye witness. He has deposed that the incident took place on 4/5/2015 between 9 p.m. and 9.30 p.m. on the petty issue of demanding a sum of Rs.500/-. According to the said witness, the deceased had asked the accused No.2 to wait for two-three days and he will repay the amount, however, the accused No.2 asked him to give Rs.500/- at once. Thus, an altercation and scuffle took place and the accused No.2 Kasim inflicted injury with iron pipe blow and the accused No.1 inflicted stick blow. The iron pipe was lying at the place near the place of the occurrence. Thus, an altercation and scuffle took place and the accused No.2 Kasim inflicted injury with iron pipe blow and the accused No.1 inflicted stick blow. The iron pipe was lying at the place near the place of the occurrence. The accused No.1 inflicted one stick blow. The police has recorded three statements of the said witness; first, on 6/5/2015, secondly on 8/5/2015 and thirdly on 15/5/2015. (4) The PW-10 – Dr. Upendrakumar Bihari Prasad Verma, Medical Officer, Civil Hospital, Godhra, who has been examined at Exh.38 has deposed that when the deceased was brought before him for treatment, he had found two injuries; one, on the left leg with pain, swelling and tenderness and another, on the left leg with pain, swelling and tenderness. He has deposed that an x-ray of the deceased was taken on 6/5/2015, which showed fracture of tibia fibula on the deceased. According to him the injuries were serious in nature and, therefore, the deceased was referred to the SSG Hospital. According to Dr.Verma, both the injuries are possible with a hard and blunt substance. He had issued the Injury Certificate (Exh.39) and the same was communicated to the police vide communication at Exh.40. (5) The PW-9 Dr. Chetankumar, Medical Officer, SSG Hospital, has been examined at Exh.39. According to him, there were three injuries on the left leg and four injuries on the right leg. According to him, he did not find any injury on the head of the deceased or any part of the body. According to the PW-9, the deceased died due to cardio respiratory failure on account of multiple injuries. (6) The Investigating Officer has given deposition at Exh.20. According to him, he conducted the investigation after the registration of the FIR. He deposed that after the death of the victim, an offence under Section 302 of IPC was subsequently added. He recovered the weapons used in the commission of the offence. He carried out the investigation and filed the charge-sheet. (7) From the evidence on record, it is clear that the accused No.1 inflicted stick blow and the accused No.2 inflicted iron pipe blow on the leg of the deceased, thereby causing fracture of tibia fibula on the deceased. He recovered the weapons used in the commission of the offence. He carried out the investigation and filed the charge-sheet. (7) From the evidence on record, it is clear that the accused No.1 inflicted stick blow and the accused No.2 inflicted iron pipe blow on the leg of the deceased, thereby causing fracture of tibia fibula on the deceased. (8) From the evidence of the PW-11 Siraj Ahemad Kalandar, who has been examined at Exh.42, it is clear that the accused No.1 caused injury by stick on the leg and accused No.2 caused injury with iron pipe on the leg of the deceased. As a result, there were multiple injuries caused by both the accused on both the legs of the deceased and there was fracture of tibia fibula on the right leg of the deceased. The presence of both the appellants-accused and the role played by them in the commission of the offence have been established beyond reasonable doubt. (9) Even from the deposition of the PW-9 - Dr. Chetankumar Roshanlal Jain, Medical officer, SSG Hospital, Vadodara, who has been examined at Exh.37, it has been established that there was fracture of tibia fibula on the right leg of the deceased ad-measuring 3 cm x 2 cm and there were also multiple fractures on the paw of the left leg of the deceased. Even as per the Injury Certificate Exh.39 issued by the PW-9, there was fracture of tibia fibula. As per PW-9, the cause of death is cardio respiratory failure on account of multiple injuries. As per PW-9, the injuries were grave in nature and were sufficient to cause death. As per PW-9, the injuries on the body of the deceased are possible by the muddamal iron pipe and stick. 26. We have perused the judgment of the trial court threadbare. The central point of the argument of the learned counsel for the appellants-accused is that the appellants cannot be convicted for the offence punishable under Section 302 of the Indian Penal Code. So, we have concentrated on the same. In our considered opinion, the trial court, after appreciating the evidence, has precisely established the presence of both the appellants-accused at the scene of offence and their involvement in the crime and the weapons, i.e. iron pipe and stick. So, we have concentrated on the same. In our considered opinion, the trial court, after appreciating the evidence, has precisely established the presence of both the appellants-accused at the scene of offence and their involvement in the crime and the weapons, i.e. iron pipe and stick. There cannot be any ostensible evidence in this regard, because it is a mental state of the assailants, and the mental state can be inferred with the conduct and surrounding circumstances. Now, in our view, if the blow is not given on the vital part of the body, viz. Head, with such a force which results into the injuries sustained by the deceased, the knowledge on the part of the assailant that the act was likely to cause death can safely be inferred. However, the crucial issue is as to which was the appropriate provision to be applied looking to the overall evidence. The trial court has not adverted to any reason apropos the submissions made by the accused that the injuries to the deceased are not sufficient to cause death in the ordinary course. However, it is not the case of the prosecution that there was any attempt on the part of the appellants-accused to cause further injuries. 27. Under the circumstances, we find substance in the submission of the learned counsel for the appellants-accused that the trial court erred in convicting both the accused for the offence under Section 302 instead of Section 304 Part-II and hence the conviction of both the accused is required to be altered to one punishable under Section 304 Part-II of the Indian Penal Code and the sentence is required to be reduced to that of five years. 28. So far as the contention on the part of the appellants-accused that the appellants have not caused grievous injuries on the vital part of the deceased and there was fracture of tibia fibula on the right leg and there was no intention on the part of the accused is concerned, the same requires consideration. It is an admitted position of fact that the appellants-accused caused injuries on the leg and there was fracture of tibia fibula on the right leg of the deceased caused with an iron pipe and a stick, due to which the deceased sustained multiple injuries and ultimately succumed. It is an admitted position of fact that the appellants-accused caused injuries on the leg and there was fracture of tibia fibula on the right leg of the deceased caused with an iron pipe and a stick, due to which the deceased sustained multiple injuries and ultimately succumed. However, after going through the entire evidence on record, it could be said that there was no intention on the part of the accused to kill the deceased. Even if the entire evdience on record is believed to be true, the intention of the appellantd to kill the deceased is not proved and established. Hence, there is substance in the contention of the advocate of the appellants that the trial court erred in convicting the appellant for the offence under Section 302 of the Indian Penal Code. 29. Considering the overall evidence on record, we are of the opinion that there is substance in the submission of the learned counsel for the appellants-accused that at the best it is a case of culpable homicide not amounting to murder. There is absence of premeditation and intention to kill the deceased. The medical evidence indicates that there was no injury on the vital part of the body of the deceased and the injuries were on the legs and there was fracture of tibia fibula on the right leg of the deceased. Thus, this is a case of one injury in the form of fracture of tibia fibula on the right leg of the deceased with iron pipe and stick. From the evidence on record, it is clear that the incident happened all of a sudden without any rhyme or reason or any motive and there was no premeditation on the part of the appellants-accused. 30. Section 299 of the Indian Penal Code explains 'culpable homicide' as causing death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that the act complained of is likely to cause death. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death. On the facts of this case, the offence of culpable homicide is clearly made out. 31. The first two categories require the intention to cause death or the likelihood of causing death while the third category confines itself to the knowledge that the act complained of is likely to cause death. On the facts of this case, the offence of culpable homicide is clearly made out. 31. Section 300 of the Indian Penal Code explains what is 'murder' and it provides that culpable homicide is murder if the act by which the death is caused is done with the intention of causing death or the act complained of is so imminently dangerous that it must, in all probability, cause death or 'such bodily injury as is likely to cause death'. There are some exceptions when culpable homicide is not amounting to murder and we are concerned with exception-4, which reads thus : "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." 32. Exception 4 to Section 300 of the Indian Penal Code 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 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 the parties puts them in respect of guilt upon an equal footing. 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 the 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. 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 the Indian Penal Code. 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 the 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 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'. 33. From the above conspectus, it emerges that whenever a court is confronted with the question, whether the offence is 'murder' or 'culpable homicide not amounting to murder', on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by which he has caused the death of another. Proof of such causal connection between the act of the accused and the death leads to the second stage for consideration, whether that act of the accused amounts to 'culpable homicide' as defined in Section 299. If the answer to this question is, prima facie, found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code is reached. This is the stage at which the court should determine, whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of 'murder' as contained in Section 300. If the answer to this question is in the negative, the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, the case comes within any of the exceptions enumerated in Section 300, but the offence would still be 'culpable homicide not amounting to murder', punishable under the first part of Section 304 of the Indian Penal Code. 34. In State of A.P. v. Rayavarapu Punnayya and another, reported in AIR 1977 SC 45 , the Supreme Court, while drawing a distinction between Sections 302 and Section 304, held as under:- "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. 34. In State of A.P. v. Rayavarapu Punnayya and another, reported in AIR 1977 SC 45 , the Supreme Court, while drawing a distinction between Sections 302 and Section 304, held as under:- "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice- versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.” 35. In the case of Budhi Singh v. State of Himachal Pradesh, reported in (2012)13 SCC 663 : 2013 AIR SCW 457, the Supreme Court has held as under : “18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....." 36. In the case of Kikar Singh v. State of Rajasthan, reported in AIR 1993 SC 2426 , the Supreme Court held as under : "8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder. 9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...." 37. The Supreme Court, in the case of Singh v. State of Punjab, reported in AIR 2017 SC 1904 , has observed that : "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. 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......... 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". 38. Section 304 of the Indian Penal Code provides the punishment for culpable homicide not amounting to murder. Part I of this Section provides that 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, then the punishment may extend up to imprisonment for life. On the other hand, Part II of Section 304 provides that if the offending act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death, then the punishment may extend up to imprisonment for ten years. 39. As held by the Supreme Court in the case of Talaram v. State of Madhya Pradesh, reported in AIR 2018 SC 2146 , the intention to cause death must not be readily inferred though the accused may be attributed with the knowledge that the injury is likely to cause death. The Supreme Court, in the said case, in the absence of any premeditation, altered the conviction from Section 302 of IPC to the second part of Section 304 of the IPC. The trial court assumed that the accused had intended to cause death of the deceased. There was nothing on record to suggest such an intention and none of the witnesses had given any indication of the intention of the appellant to cause death of the deceased. The trial court assumed that the accused had intended to cause death of the deceased. There was nothing on record to suggest such an intention and none of the witnesses had given any indication of the intention of the appellant to cause death of the deceased. The appellant caused injury by wooden log on the head of the deceased but the intention of the accused to kill the deceased was not apparent. In view of the evidence on record, the Court was satisfied that the ingredients of 'murder' as explained in Section 300 of the IPC were missing in the case. 40. Thus, considering the factual scenario of the case on hand in its entirety, the evidence on record and in the background of the legal principles laid down by the Supreme Court in the cases referred to above, the attack was sudden and not premeditated. Such being the position, it cannot be held that the accused had the intention to kill the deceased or to cause such bodily injury as is likely to cause death. In the facts of the case on hand, all the requirements of exception-4 under Section 300 of the IPC have been satisfied. Therefore, the benefit of exception-4 under Section 300 of the Indian Penal Code is attracted to the fact situations and the appellants-accused are entitled to this benefit. 41. In the case of Deepak v. State of U.P., reported in (2018)8 SCC 228 , the Supreme Court observed in para 7 as under :- “7. On consideration of the entirety of the evidence, it can safely be concluded that the occurrence took place in the heat of the moment and the assault was made without premeditation on the spur of time. The fact that the appellant may have rushed to his house across the road and returned with a sword, is not sufficient to infer an intention to kill, both because of the genesis of the occurrence and the single assault by the appellant, coupled with the duration of the entire episode for 1½ to 2 minutes. Had there been any intention to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run away. Had there been any intention to do away with the life of the deceased, nothing prevented the appellant from making a second assault to ensure his death, rather than to have run away. The intention appears more to have been to teach a lesson by the venting of ire by an irked neighbour, due to loud playing of the tape recorder. But in the nature of weapon used, the assault made in the rib-cage area, knowledge that death was likely to ensue will have to be attributed to the appellant.” 42. Applying the principles, as laid down by the Supreme Court in the above referred decisions, to the facts of the present case, and considering the entirety of the evidence of the present case, we are unable to affirm the conviction of the appellants-accused under Section 302 of the Indian Penal Code and are satisfied that the same deserves to be altered to Section 304 Part II of the Indian Penal Code. 43. In the result, both the Appeals are partly allowed. The impugned judgment and order of conviction dated 23rd June 2016 passed by the learned 3rd Additional Sessions Judge, Godhra, in the Sessions Case No.123 of 2015 is hereby modified to the extent that the conviction of the appellants-accused of the offence punishable under Section 302 of the Indian Penal Code is hereby altered to Section 304 Part-II of the Indian Penal Code. The appellants-accused are sentenced to undergo rigorous imprisonment for a period of five years with fine of Rs.10,000=00 each, and in default of payment of the amount of fine, to further undergo simple imprisonment for a period of six months. If the appellants-accused, by now, have undergone more than five years of sentence, then they be set at liberty forthwith, if not required in any other case, subject to the payment of the amount of fine.