JUDGMENT : Vimal K. Vyas, J. 1. Pursuant to the order passed by this Court dated 12th December 2023, the present appeal is taken up for final hearing. 2. This Court, while passing the aforesaid order, has considered the fact that the appellant-accused has already undergone more than 12 years of incarceration. 3. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘CrPC’), is at the instance of the appellant-accused and is directed against the judgment and order of conviction and sentence dated 8th April 2011 passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No.11 of 2011, whereby the learned Sessions Judge has convicted the appellant-accused for the offences under Section 302 of the IPC (for short, ‘IPC’) read with Section 135 of the Bombay Police Act. 4. By the aforesaid judgment and order, the learned Sessions Judge found the appellant-accused guilty of the offence under Section 302 of the IPC, and consequently, sentenced him to suffer life imprisonment and to pay a fine of Rs.5,000=00 and in default of payment of fine, the appellant-accused was directed to undergo further rigorous imprisonment for six months. The learned Sessions Judge also found the appellant-accused guilty of the offence under Section 135 of the Bombay Police Act, and consequently, sentenced him to suffer rigorous imprisonment for one year with a fine of Rs.2,000=00 and in default of payment of fine, the appellant-accused was directed to undergo further rigorous imprisonment for three months. THE CASE OF THE PROSECUTION : 5. It is the case of the prosecution that the deceased Raijibhai Jingabhai Tadvi was a resident of village Gadkoi. He had two sons and the elder son was living separately from him with his family, whereas the younger son named Chandu alias Dharmendra Raijibhai is married and was residing with his family along with his parents. It is the case of the prosecution that the younger son of the deceased, namely, Chandu alias Dharmendra was not doing any work and was in the habit of consuming liquor. He used to sell out any household items to satisfy is habit of consuming liquor and he frequently used to quarrel with his father - deceased Raijibhai Jingabhai Tadvi. Under these circumstances, the present incident has happened. 6. He used to sell out any household items to satisfy is habit of consuming liquor and he frequently used to quarrel with his father - deceased Raijibhai Jingabhai Tadvi. Under these circumstances, the present incident has happened. 6. It is the case of the prosecution that the present incident took place on 2.12.2010 at about 10:30 hours in the morning at village Gadkoi. At that time, the accused was in need of money to consume liquor and, therefore, while he was taking the maize lying in the house for sale, the deceased stopped him saying that the same is kept for the consumption of the family. So the accused became agitated and with the knowledge and intention to kill the deceased, he brought the Axe from the house and inflicted two blows on the vital parts of the body of the deceased, i.e. jaw and neck. The deceased fell down on the ground and was bleeding profusely from his internal organs, as a result, he died on the spot. When the accused was about to run away by throwing the Axe at the place of the incident, the people gathered around caught hold of him and informed the police. 7. On the strength of the complaint lodged by the wife of the deceased, namely, Jamnaben Raijibhai Tadvi, the offence was registered vide I-CR No.18 of 2010 at the Kevadiya Police Station and the investigation was carried out. During the investigation, the scene of offence panchnama, inquest panchnama, seizure panchnama, etc. were drawn in presence of panchas and the statements of the witnesses conversant with the incident were recorded. The appellant-accused was arrested on the same day and the arrest panchnama in this regard was also drawn in presence of two panchas. The documentary evidence in the nature of post-mortem report, FSL report, etc. were collected. 8. On completion of the investigation, charge-sheet came to be filed before the Chief Judicial Magistrate, Rajpipla, under Section 302 of the IPC read with Section 135 of the Bombay Police Act. As the offence was exclusively triable by the Sessions Court, the case was committed to the Sessions Court, Narmada at Rajpipla, which was registered as Sessions Case No.11 of 2011. The learned Sessions Judge framed the charge at Exh.6 against the accused. As the offence was exclusively triable by the Sessions Court, the case was committed to the Sessions Court, Narmada at Rajpipla, which was registered as Sessions Case No.11 of 2011. The learned Sessions Judge framed the charge at Exh.6 against the accused. The charge was read over and explained to the accused, who pleaded not guilty to the charge and claimed to be tried. 9. To bring home the charge, the prosecution produced the following oral evidence : Sr. No. Exh. Name of the Witness 1 9 Deposition of Dr.Subodh Kamleshkumar. 2 14 Deposition of Naranbhai Ratanbhai Tadvi, panch witness of the scene of offence panchnama. 3 16 Deposition of Chimanbhai Hirabhai Tadvi, panch witness of the inquest panchnama. 4 18 Deposition of Jayprakash Govindbhai Tadvi, panch witness of the arrest panchnama of the accused. 5 20 Deposition of Iqbalkhan Ismailkhan Pathan, panch witness of the panchnama of recovery of clothes from the deceased. 6 22 Deposition of the complainant - Jamnaben Raijibhai Tadvi. 7 24 Deposition of the witness Bhayjibhai Jingabhai Tadvi. 8 25 Deposition of the witness Laxmanbhai Viththalbhai Tadvi. 9 26 Deposition of the witness Ambalal Raijibhai Tadvi. 10 28 Deposition of Jethalal Laljibhai, P.S.O. 11 33 Deposition of Arunbhai Trambakbhai Soni, A.S.I. 12 34 Deposition of Sanjaykumar Muljibhai Gameti, P.S.I. 10. The prosecution also adduced the following documentary evidence : Sr. No. Exh. Document details 1 10 Police yadi for post-mortem 2 11 Inquest panchnama 3 12 Death certificate 4 13 Post-mortem report 5 15 Panchnama of the scene of offence 6 17 Inquest panchnama 7 19 Arrest panchnama of the accused 8 21 Panchnama of the recovery of clothes of the deceased 9 23 Complaint 10 29 Entry No.114 of the Station diary 11 30 Entry No.115 of the Station diary 12 31 Entry No.116 of the Station diary 13 32 Entry No.117 of the Station diary 14 35 Report about the visit of the place of offence 15 36 Notification with regard to arms prohibition 16 37 Yadi for post-mortem 17 38 Outward/Dispatch entry 18 39 F.S.L. Report 19 40 Serological Report 11. On completion of recording of the evidence, the learned Sessions Judge explained the incriminating circumstances appearing against the accused in the evidence. The accused, in the further statement recorded under Section 313 of the CrPC, explained the incriminating circumstances that he is innocent and falsely implicated in the alleged offence. 12. On completion of recording of the evidence, the learned Sessions Judge explained the incriminating circumstances appearing against the accused in the evidence. The accused, in the further statement recorded under Section 313 of the CrPC, explained the incriminating circumstances that he is innocent and falsely implicated in the alleged offence. 12. On completion of the trial, the learned Sessions Judge found the appellant-accused guilty of the offence and sentenced him as stated herein before. 13. Being dissatisfied with the aforesaid judgment and order of conviction and sentence, the appellant-accused has preferred the present appeal before this Court. 14. Thus, it is the case of the complainant that the accused has committed an offence of culpable homicide amounting to murder punishable under Section 302 of the IPC. Moreover, it is alleged by the prosecution that at the date, time and place of the incident, the notification under Section 37 of the Bombay Police Act, prohibiting carrying of arms, was in operation. Therefore, it is the case of the prosecution that the accused, by carrying the weapon like Axe, disobeyed the notification, thereby he has also committed an offence punishable under Section 135 of the Bombay Police Act. SUBMISSIONS ON BEHALF OF THE APPELLANT - ACCUSED : 15. Learned advocate Mr.K.J.Dwivedi appearing for the appellant-accused has submitted that the trial court has erred in convicting and sentencing the accused for the offence punishable under Section 302 of the IPC and under Section 135 of the Bombay Police Act. He has submitted that the trial court has convicted the appellant-accused primarily on the evidence of the complainant - Jamnaben Raijibhai Tadvi, who has made a false statement before the trial court that the present appellant-accused has murdered his father and she is the eye-witness to the incident. According to Mr.Dwivedi, in fact, the deceased had died due to the accidental head injury. While referring to the evidence of Chimanbhai Hirabhai Tadvi (PW3), Bhayjibhai Jingabhai Tadvi (PW7), Laxmanbhai Viththalbhai Tadvi (PW8) and Ambalal Raijibhai Tadvi (PW9), it is submitted that they had not seen the appellant-accused inflicting the blows on the deceased. It is submitted that the evidence of the complainant and other witnesses suffer from material contradictions and omissions and the prosecution has not put forth the true version of the incident. 16. It is submitted that the evidence of the complainant and other witnesses suffer from material contradictions and omissions and the prosecution has not put forth the true version of the incident. 16. Learned advocate has further submitted that, in fact, the deceased had assaulted the appellant-accused by giving him the first blow and, therefore, the clothes of the accused were found blood stained. While drawing the attention of this Court to the FSL report, he has submitted that the blood group of the accused is ‘A’ and the same group of blood was found on his clothes, whereas the blood group of the deceased is ‘B’, which clearly establishes that the deceased had caused injuries to the accused and, therefore, the entire incident had taken place. 17. It is submitted that assuming for the moment that the offence has been committed, however, the trial court misdirected itself in convicting the accused for the offence punishable under Section 302 of the IPC by treating the culpable homicide as the murder, whereas, looking to the facts of the case, the offence would fall within the parameters of exceptions (1) and (4) to Section 300 of the IPC, i.e. culpable homicide not amounting to murder; and therefore, the conviction is required to be altered to Section 304 Part (I) or Part (II) of the IPC. He has, therefore, urged before this Court that the present appeal be allowed. SUBMISSIONS ON BEHALF OF THE RESPONDENT – STATE : 18. In response to the aforesaid submissions, learned APP Ms.Krina Calla has submitted that the conviction and sentence imposed by the trial court do not call for any interference by this Court as the same has rightly been imposed after examining the oral as well as the documentary evidence. Learned APP has submitted that the evidence reveals that there was a premeditation on the part of the appellant-accused to commit murder of his father since the evidence clearly suggests that as the deceased had stopped the accused from taking away the maize by saying that it was kept for the use of the family, the accused went inside the house, brought the Axe and inflicted blows on the vital parts (i.e. neck and jaws) of the deceased. It is submitted that, looking to the injuries found on the body of the deceased, it is clear that the injuries were caused with an intention and knowledge to cause his death and, therefore, the appeal is required to be dismissed. 19. Learned APP, while referring the deposition of the complainant - Jamnaben Raijibhai Tadvi (PW6), who is the mother of the appellant-accused and was present at the scene of offence, has submitted that her evidence is more than enough to convict the appellant-accused for the offence punishable under Section 302 of the IPC. 20. Learned APP has further submitted that if the evidence of the complainant - Jamnaben Raijibhai Tadvi (PW6) is read over in conjunction with the postmortem report (Exh.13), the same would reveal that the appellant-accused had inflicted blows on the neck and jaws of the deceased with such an intensity that the deceased died on the spot, which would suggest that the appellant-accused had the intention as well as the knowledge that his act would result into the death of the victim-father. Learned APP further placed reliance on the deposition of the PW3, PW7, PW8 and PW9 and has submitted that their evidence clearly establish the complicity of the appellant-accused in the offence. 21. Learned APP has further submitted that the appellant-accused will not get the benefit of exception (1) or (4) to Section 300 of the IPC since the evidence does not reveal that the offence has occurred due to grave or sudden provocation or in a sudden fight in the heat of passion upon a sudden quarrel and without premeditation. Thus, it is urged that the conviction and sentence recorded by the trial court does not require any interference by this Court. ANALYSIS AND FINDINGS : 22. We have heard learned advocates for the respective parties and also threadbare examined the evidence on record as well as the judgment of the trial court. 23. The case of the prosecution is primarily based on the evidence of the complainant, who is the mother of the appellant-accused. The close reading of her deposition at Exh.22 would reveal that she was present at the time of the incident. 23. The case of the prosecution is primarily based on the evidence of the complainant, who is the mother of the appellant-accused. The close reading of her deposition at Exh.22 would reveal that she was present at the time of the incident. She has narrated that on the fateful day of the incident, she, along with her husband, i.e. the deceased; and the son, the present accused, were at home and at that time, the appellant-accused had asked for the maize as he was in need of money for consuming liqour. However, her husband, i.e. the deceased had refused his demand by saying that the maize is kept for the use of the family; the appellant-accused become agitated and inflicted two blows of Axe on the neck and jaws of her husband; her husband fell down on the ground and was bleeding profusely; on hearing the shout, the witness Chimanbhai Hirabhai Tadvi and Laxmanbhai Viththalbhai Tadvi, who were residing in the neighbourhood, had come there. 24. It appears that during her deposition, she has identified the Axe, which was used in the incident and also identified the accused. The cross-examination does not dent the evidence of this witness, who is the eye-witness to the incident. Admittedly, she is the mother of the appellant-accused and had no reason to falsely implicate the present appellant-accused in the heinous offence of murder of his own father. Thus, her evidence appears to be of sterling quality. 25. In order to prove homicidal death, the prosecution examined PW1 Dr.Subodh Kamleshkumar (Exh.9) who had performed the postmortem of the deceased Raijibhai. According to this witness, the external and internal injuries found on the dead-body of the deceased were recorded in the postmortem report, which is produced at Exh.13. As per the deposition of this witness, Column Nos.17 and 19 of the postmortem report indicate the external as well as internal injuries as under : EXTERNAL INJURIES : (1) A transverse cut measuring 2cm long x 1 ½ cm width over right angle of mouth extending over right cheek with right mandible clearly visible. (2) A transverse cut over midline neck front side extending over left side slight obliquely and upwards of 2 ½ cm long x 1 ½ cm width and 1 ½ cm depth with clear vision of bones inside. (3) On palpation crepitus present in the wound no.2. (2) A transverse cut over midline neck front side extending over left side slight obliquely and upwards of 2 ½ cm long x 1 ½ cm width and 1 ½ cm depth with clear vision of bones inside. (3) On palpation crepitus present in the wound no.2. Major blood vessels are found to be cut across. The trachea is found open. INTERNAL INJURIES : (1) The whole brain matter is pale 26. The doctor, after performing the postmortem, has assigned the cause of death in column no.23 as under : “To my opinion, the deceased died of haemorrhagic shock following multiple injuries” 27. The doctor has also opined that all the aforesaid injuries were ante-mortem in nature and was possible by a sharp edged weapon like ‘Axe’. He has specifically stated in his deposition that all the aforesaid injuries were sufficient to cause death in an ordinary course of nature. 28. Learned advocate Mr.Dwivedi has taken the defence that the deceased sustained the aforesaid head injuries due to the accident which, in our view, does not seems palatable considering the trustworthy evidence of the complainant - Jamnaben Raijibhai Tadvi (PW6) and Dr.Subodh Kamleshkumar (PW1). 29. It reveals from the record that the prosecution has also examined the witnesses, namely, Chimanbhai Hirabhai Tadvi (PW3), Bhayjibhai Jingabhai Tadvi (PW7) and Laxmanbhai Viththalbhai Tadvi (PW8) and all these witnesses have similarly deposed that after hearing the shout of the complainant, they immediately rushed to the scene of the offence and saw the deceased lying on the ground bleeding profusely. They have also deposed that at that time the appellant-accused was trying to run away but he was caught hold by the people gathered there. All the witnesses have also consistently stated that after inflicting the blows on the deceased, the appellant-accused had thrown the Axe at the scene of offence. Similarly, all the witnesses, during the recording of their evidence, have identified the accused and the Axe used in the commission of the offence. The prosecution, in this regard, has produced the scene of the offence panchnama (Exh.15), which is proved in the deposition of the panch witness Naranbhai Ratanbhai Tadvi (PW2), who has specifically deposed that in his presence the panchnama of the scene of the offence has been drawn and the police seized the blood stained Axe from the spot. The prosecution, in this regard, has produced the scene of the offence panchnama (Exh.15), which is proved in the deposition of the panch witness Naranbhai Ratanbhai Tadvi (PW2), who has specifically deposed that in his presence the panchnama of the scene of the offence has been drawn and the police seized the blood stained Axe from the spot. He has also deposed that the police collected the sample of blood-stained soil and controlled soil from the place of offence. 30. The prosecution has also examined witness Ambalal Raijibhai Tadvi (PW9), who is the elder brother of the appellant-accused. He has deposed that on the fateful day, he received a phone call from Chimanbhai Hirabhai Tadvi (PW3), who had informed him that his brother Dharmendra Raijibhai Tadvi has killed his father by inflicting Axe blows. He, therefore, rushed to his home. He has further stated that his father was lying on the ground bleeding profusely on account of the injuries on the neck and jaws and he succumbed to the injuries. He also saw his brother (i.e. the accused) who was tied by the people gathered around there. During his deposition, he has identified the accused as well as the Axe used in the commission of the offence. 31. It is pertinent to note here that almost all the aforesaid witnesses have consistently stated that the accused was not doing any work for livelihood and was in the habit of consuming liquor and he used to sell out any household articles to satisfy his need of consuming alcohol. 32. We have also considered the biological as well as serological report from the FSL produced at Exh.39 and Exh.40 respectively, which show that the human blood of ‘A’ group was found on the clothes of the deceased, whereas the human blood of ‘B’ group was found on the clothes of the accused. It also transpires from the aforesaid reports that the group of human blood which was found on the Axe and the group of blood found in the sample of RCC road could not be decided. 33. We found no evidence on record which suggests that the accused had received any injury at the time of the incident. Even, in the arrest panchnama produced at Exh.19, it is specifically mentioned that there is no sign of any injury on the person of the accused. 34. 33. We found no evidence on record which suggests that the accused had received any injury at the time of the incident. Even, in the arrest panchnama produced at Exh.19, it is specifically mentioned that there is no sign of any injury on the person of the accused. 34. Having carefully considered the aforesaid evidence, in our opinion, the involvement of the appellant-accused in the commission of the offence is clearly established. 35. Lastly, we will deal with the argument advanced by learned advocate Mr.K.J.Dwivedi for the appellant-accused that looking to the facts of the case, the offence will amount to culpable homicide not amounting to murder since it would fall within the parameters of exceptions (1) and (4) to Section 300 of the IPC. 36. Section 300 of the Indian Penal Code reads thus : “300. Murder.---Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— Fourthly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.—When culpable homicide is not murder.— Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:— First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.—Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. 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. Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.” 37. On the appreciation of the evidence; both, oral as well as medical, in our considered opinion, the offence of murder is established. It is clearly established that the appellant-accused had inflicted two blows of Axe on the neck and jaws of his father (deceased) only because he stopped him taking away the maize which was kept for the use by the family. This, in our opinion, cannot, in any manner, be considered as grave and sudden provocation. Moreover, the injuries were inflicted using such a force and precision that it could safely be presumed that the accused had the intention or he knew that it would likely to cause death of the person or it would be sufficient in ordinary course of nature to cause death. Moreover, the injuries were inflicted using such a force and precision that it could safely be presumed that the accused had the intention or he knew that it would likely to cause death of the person or it would be sufficient in ordinary course of nature to cause death. As established, the deceased had immediately died due to the Axe blows inflicted on the vital part of the deceased. 38. The ingredients of exception (4) to Section 300 of the IPC would indicate that a culpable homicide is not a 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. To bring a case within exception (4) to Section 300 of the IPC all the ingredients mentioned in it must be found. 39. We do not find that the evidence satisfies the ingredients of exception (4) to Section 300 of the IPC in the present case. There was no sudden fight or sudden quarrel or provocation between the deceased and the accused. The accused was armed with an Axe and he had inflicted Axe blows upon his father who was utterly helpless. It is clearly established that by taking advantage of such a situation, the accused had inflicted deadly blows of Axe on the neck and jaws of the deceased with precision, which resulted into his death. 40. The nature of injury clearly indicates that the appellant-accused acted in a cruel manner, and as such, in no circumstances, the case of the accused will fall under the provisions of exception (1) or (4) to Section 300 of the IPC. 41. In the overall view of the matter, more particularly, having regard to the manner in which the incident had occurred and the injuries sustained by the deceased, the plea raised on behalf of the appellant-accused of exceptions to Section 300 of the IPC is completely misconceived. Hence, the appellant-accused cannot be given the benefit of such exceptions. 42. It would be profitable for us to quote the following observations of the Supreme Court explaining the scope and ambit of exception (4) of Section 300 of the IPC, made in the case of Vishal Singh vs. State of Rajasthan, reported in 2009 Cri.L.J. 2243. A three-Judge Bench observed in paragraph 7 as under: “7. 42. It would be profitable for us to quote the following observations of the Supreme Court explaining the scope and ambit of exception (4) of Section 300 of the IPC, made in the case of Vishal Singh vs. State of Rajasthan, reported in 2009 Cri.L.J. 2243. A three-Judge Bench observed in paragraph 7 as under: “7. 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 reasons 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. 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. 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 the 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 cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat ( 2003 (5) Supreme 223 ]; Parkash Chand v. State of H.P. ( 2004 (11) SCC 381 ); Byvarapu Raju v. State of A.P. and Anr. ( 2007 (11) SCC 218 ) and Hawa Singh and Anr. v. State of Haryana (SLP (Crl.) No.1515/2008, disposed of on 15.1.2009).” 43. Applying the aforesaid principles as explained by the Supreme Court in the facts of the present case, more particularly, considering the evidence on record, we have no hesitation in coming to the conclusion that the present case is not that of culpable homicide not amounting to murder, but the same is one of murder. 44. We are, therefore, not convinced with the submission of learned advocate Mr.Dwivedi that the case falls within exception (4) to Section 300 of the IPC. 44. We are, therefore, not convinced with the submission of learned advocate Mr.Dwivedi that the case falls within exception (4) to Section 300 of the IPC. The sine quo non for the application of an exception to Section 300 always is that it is a case of murder but the accused claims the benefit of the exception to bring it out of that section and to make it a case of culpable homicide not amounting to murder. We must, therefore, assume that this would be a case of murder and it is for the accused to show the applicability of the exception. 45. It is also found from the record that the learned Sessions Judge has also considered that the notification of a District Magistrate issued under Section 37 of the Bombay Police Act prohibiting carrying of arms was in force at the time of occurrence of the offence, which was disobeyed by the appellant-accused and, therefore, the appellant-accused was rightly held guilty, for the offence punishable under Section 135 of the Bombay Police Act, by the learned Sessions Judge. 46. In our considered opinion, we find that the trial court committed no error and has rightly convicted the appellant-accused for the offences mentioned herein above. 47. On consideration of the entire materials on record, we find that the prosecution has proved the case of murder beyond reasonable doubt by production of evidence of the eye-witness, who is none else than the mother of the appellant-accused and we do not find any reason to disbelieve such evidence. The appeal is, thus, devoid of any merits and is accordingly dismissed. The judgment and order of conviction and sentence dated 8th April 2011 passed by the learned Sessions Judge, Narmada at Rajpipla in Sessions Case No.11 of 2011 is hereby confirmed. Records and proceedings be sent back. 48. In view of the judgment passed in the main Criminal Appeal itself, the application seeking suspension of sentence would not survive and the same is disposed of accordingly.