JUDGMENT : Alok Kumar Verma, J. These two appeals have arisen from a common judgment dated 08.10.2013/15.10.2013, passed by the learned District and Sessions Judge, Nainital, in Sessions Trial No. 173 of 2010, “State vs. Zahid alias Cheeta and two others”, by which, the appellants have been convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code (in short “IPC”), and, sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 10,000/- each, and, in default of payment of fine, they have been further directed to undergo imprisonment for a period of six months; and, they have been convicted and sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 5,000/- each for the offence punishable under Section 120B IPC, and, in default of payment of fine, they have been directed to undergo further imprisonment for a period of six months. Both the sentences are directed to run concurrently. 2. These two Appeals are connected appeals, therefore, these two appeals are being decided by this common judgment. File of Criminal Appeal No.486 of 2013 will be leading file. 3. The prosecution case, in brief, is that on 11.07.2010, a party was being celebrated in the house of Rizwan (PW1), informant. The deceased Faiyaz Khan alias Chaina was his friend. The deceased and the prosecution witness Mohd. Imroz (PW2) along with other persons were present in the said party. At about 10.00 p.m., the deceased Faiyaz Khan alias Chaina had gone back to his house. At around 10.30 p.m., the informant received a phone call from the appellant-accused Zahid alias Cheeta that the appellant-co-accused Abrar alias Kalwa had got money from gambling and asked him (Rizwan) to collect money. As the party was being celebrated in his house, he sent Mohd. Imroz (PW2). At about 10.45 p.m., Mohd. Imroz (PW2) came back and told that the appellants-accused persons had assaulted Faiyaz Khan alias Chaina with a Chapar. On the said information, the informant along with his associates reached the spot. They took him to Krishna Hospital, Haldwani. On the advice of doctor, they took him Sushila Tiwari Hospital, Haldwani. 4. On 12.07.2010 at 00.50, Rizwan (PW1), the informant, lodged the First Information Report (Ex. Ka14) through his written information (Ex. Ka1). Initially, the FIR was registered under Section 307 IPC. They took him to Krishna Hospital, Haldwani. On the advice of doctor, they took him Sushila Tiwari Hospital, Haldwani. 4. On 12.07.2010 at 00.50, Rizwan (PW1), the informant, lodged the First Information Report (Ex. Ka14) through his written information (Ex. Ka1). Initially, the FIR was registered under Section 307 IPC. After the death of the injured during his treatment, the case was converted under Section 302 IPC. On 12.07.2010, inquest proceedings and post-mortem examination of the dead body of the deceased were conducted. The said Chaper and the clothes of the deceased were sent to the Forensic Science Laboratory. After completion of investigation, the Investigating Officer had submitted charge sheet (Ex. Ka28) against the appellants along with one Imran Khan. 5. The case was committed to the Court of Session. 6. Charges under Section 302 read with Section 34 and 120B IPC were framed against the accused persons. They denied the charges and claimed to be tried. 7. The prosecution examined as many as ten witnesses. 8. PW1 Rizwan is an informant and PW2 Mohd. Imroz is an eye witness. They have supported the case of the prosecution. 9. PW3 Shahnwaj Khan is a younger brother of the deceased. He was in the house when Mohd. Imroz (PW2) came back and informed that the appellants-accused persons had assaulted the deceased. 10. PW4 Dr. Vipin Pant has conducted the post-mortem of the dead body of the deceased at 09.30 a.m. on 12.07.2010. During the post-mortem, he found the following ante-mortem injuries on the dead body of the deceased :- (i) Stitched wound seen over right forehead size 3 cm. X 0.5 cm. (ii) Large stitched wound seen over right side by face size 8 cm. X 0.5 cm. (iii) Stitched wound of size 15 cm. seen over left side of face, which extent up to back of neck. On further exploration wound was bony deep. (iv) Multiple abrasion seen over right shoulder size 6 X 6 cm. dermis deep. (v) Multiple abrasion seen over left side of chest, right thigh, right leg and left leg, bleeding present. (vi) In internal examination bone underneath scalp and three ribs were also found fractured. According to Dr. Vipin Pant, the cause of death was coma, shock and hemorrhage as a result of ante-mortem injuries. 11. PW5 Dr. Rajiv Srivastava was posted as Emergency Medical Officer on 11.07.2010. (vi) In internal examination bone underneath scalp and three ribs were also found fractured. According to Dr. Vipin Pant, the cause of death was coma, shock and hemorrhage as a result of ante-mortem injuries. 11. PW5 Dr. Rajiv Srivastava was posted as Emergency Medical Officer on 11.07.2010. At 11.55 p.m., he examined the injuries of the injured Faiyaz Khan alias Chaina with Chapar (Ext.1). He found the following injuries:- (i) Lacerated wound 8 X 6 cm. on right side of neck. (ii) Lacerated wound 7 X 5 cm. on right side of neck. (iii) Lacerated wound 3 X 1 cm. on forehead. Bleeding was also found. 12. PW6 Dr. Pradeep Chandra Sharma, Senior Resident, Surgery Department, Sushila Tiwari Hospital, Haldwani has stated that on 11.07.2010 at about 11.00 p.m., the injured was brought to him. The injured was taken into I.C.U. from the Emergency Ward. According to this witness, as per “Bed Head Ticket” of the injured, the following injuries were found :- (i) 7 X 2 X 2 and 6 X 2 X 2 cm. wound over right side of back of scalp. (ii) 6 X 3 X 3 cm. wound deep over right parotid region. (iii) 12 X 4 X 3 deep wound over left side of neck. (iv) 3 X 1 X 1 cm. wound over forehead. 13. PW7 Sub-Inspector K.S. Negi had conducted the inquest proceedings. 14. PW8 Constable Dara Singh Bora has proved the Chick FIR (Ext. Ka14). 15. PW9 Mohd. Riyaz is a witness of fact. According to him, on 11.07.2010, he saw a sharp edged weapon in the hand of the accused Zahid alias Cheeta. He also went to Sushila Tiwari Hospital. 16. PW10 Sub-Inspector Naresh Chauhan is Investigating Officer. 17. Statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973. They denied all the incriminating evidence, produced by the prosecution. 18. The appellants-accused persons have not adduced any defence evidence. 19. After hearing both the parties and appreciating the evidence, the impugned judgment was passed, by which, the appellants-accused persons have been convicted, whereas, one co-accused has been acquitted. 20. Aggrieved by the impugned judgment of conviction and sentence, the appellants appealed to this Court. 21. Heard learned counsel for the parties. 22. Mr. Lalit Sharma, Advocate and Mr. 19. After hearing both the parties and appreciating the evidence, the impugned judgment was passed, by which, the appellants-accused persons have been convicted, whereas, one co-accused has been acquitted. 20. Aggrieved by the impugned judgment of conviction and sentence, the appellants appealed to this Court. 21. Heard learned counsel for the parties. 22. Mr. Lalit Sharma, Advocate and Mr. Kurban Ali, Advocate for the appellants submitted that the present case does not fall under the offence of culpable homicide amounting to murder, i.e., under Section 302 IPC, rather present matter falls under Section 304 Part I IPC. 23. On the other hand, Mr. J.S. Virk, the learned Dy. Advocate General for the State and Mr. Deep Chandra Joshi, the learned counsel for the victim, submitted that the prosecution has proved its case beyond all the reasonable doubts. They further submitted that the prosecution witness Mohd. Imroj (PW2), eye witness, has supported the case of the prosecution. 24. According to the prosecution witness Mohd. Imroz (PW2), at the place of the incident, there was a dispute between the deceased and the appellants regarding transaction of money. During the said disputes, at the instance of the appellant Zahid @ Cheeta to kill the deceased, Abrar alias Kalwa took out Chapar from the cart standing at that place and assaulted the deceased. The injured sustained injuries and due to the injuries, he died. 25. Exception 4 to Section 300 IPC is attracted if death is caused without premeditation. It is also well established that the fact of premeditation will not be proved from the mere fact of killing by the use of deadly weapon. In the present matter, according to the evidence of the prosecution, the appellants had assaulted with the said weapon in the heat of the moment in course of the sudden quarrel. 26. Mr. Kurban Ali, the learned counsel for the appellant, has relied upon two judgments of the Hon’ble Supreme Court. In Criminal Appeal No.2284 of 2009, “Surain Singh vs. The State of Punjab”, the Hon’ble Supreme Court held on 10.04.2017 as follows:- “16. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. Thus, if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then the same would fall under Section 304 Part II. We are inclined to the view that in the facts and circumstances of the present case, it cannot be said that the appellant-accused had any intention of causing the death of the deceased when he committed the act in question. The incident took place out of grave and sudden provocation and hence the accused is entitled to the benefit of Section 300 Exception 4 of the IPC. 17. Thus, in entirety, considering the factual scenario of the case on hand, the legal evidence on record and in the background of legal principles laid down by this Court in the cases referred to supra, the inevitable conclusion is that the act of the appellant-accused was not a cruel act and the accused did not take undue advantage of the deceased. The scuffle took place in the heat of passion and all the requirements under Section 300 Exception 4 of the IPC have been satisfied. Therefore, the benefit of Exception 4 under Section 300 IPC is attracted to the fact situations and the appellant-accused is entitled to this benefit”. In Criminal Appeal No.82 of 2015, “Dilip Kumar Mondal & Anr. vs. State of West Bengal”, the Hon’ble Supreme Court observed on 14.01.2015 as follows:- “21. 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 having taken undue advantage or acted in a cruel or unusual manner." In order to invoke the applicability of Exception 4 to Section 300 IPC, the following conditions are to be satisfied namely: that the incident happened 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." 22. This Court in Sridhar Bhuyan vs. State of Orissa (2004) 11 SCC 395 , reaffirmed the same and held as under:- "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 [pic]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. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. 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. 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". 27. There is not an iota of evidence to establish that the appellants prior to the commission of the offence had conspired together. Therefore, the allegation of conspiracy cannot be accepted, However, after careful analysis, we satisfied that the incident took place in a sudden fight. The incident was not premeditated, and, in the facts and evidence, produced by the prosecution, it cannot be said that the appellants had taken any undue advantage or acted in a cruel manner. In our view, the appellants had committed culpable homicide. The present case falls under Exception 4 to Section 300 IPC. The incident was not premeditated, and, in the facts and evidence, produced by the prosecution, it cannot be said that the appellants had taken any undue advantage or acted in a cruel manner. In our view, the appellants had committed culpable homicide. The present case falls under Exception 4 to Section 300 IPC. Therefore, the appellants are liable to be convicted for the offence punishable under Section 304 Part I IPC read with Section 34 IPC. 28. In the result, the appeal is allowed in part. The impugned judgment of conviction and sentence under Section 302 IPC along with the conviction and sentence, passed for the offence under Section 120B IPC, are hereby set aside. 29. The appellants are convicted for the offence punishable under Section 304 Part I IPC read with Section 34 IPC and, are sentenced to undergo rigorous imprisonment for a period of ten years and directed to pay a fine of Rs. 20,000/- each, and, in default of payment of fine, they are directed to undergo further rigorous imprisonment for a period of six months. In the event of payment of fine, 50%, thereof, shall be paid to the legal heirs of the deceased. The period of detention undergone by the appellants shall be set off, under Section 428 of the Code of Criminal Procedure, 1973, against the term of imprisonment imposed on the appellants. 30. A copy of this judgment be placed in the connected appeal. 31. TCRs be sent back.