Honble SHARMA, J.– Rameshwar, appellant herein, with a lathi in hand, chased and ousted a mad dog out of the village. At the same time Rameshwar inflicted lathi blow on the head of his cousin Rajendra. Rameshwar was put to trial for committing murder of Rajendra before learned Additional Sessions Judge (Fast Track) No.1 Kota, who vide judgment dated October 1, 2002 convicted and sentenced him under Section 302 IPC to suffer imprisonment for life and fine of Rs.1,000/-, in default to further suffer imprisonment for six months. In this appeal Rameshwar has assailed the said finding of learned trial court.

(2). It is the prosecution case that on January 07, 2002 informant Mohan Lal (Pw.1) submitted a written report (Ex.P-1) at police Station Sangod to the effect that on the said day around 8 AM while his son Rajendra was going towards the field Ram Gopal, Rameshwar and Nand Bihari waylaid him and inflicted lathi blows on his person. On that report a case was registered under sections 341, 323, 307 and 34 IPC and investigation commenced. During the course of investigation Rajendra succumbed to his injuries and section 302 IPC was added. Dead body was subjected to autopsy, necessary memos were drawn, statements of witnesses were recorded, appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (fast Track) No.1 Kota. Charge under section 302 IPC was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 14 witnesses. In the explanation under Sec.313 CrPC, the appellant claimed innocence. One witness in support of defence was examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above.

(3). Prior to his death Rajendra Kumar vide injury report (Ex.P- 17) received following injuries:-

1. Lacerated wound over frontal region 1 x 1cm with contused swelling 2cm left to mid line 8cm above left brow scalp layer deep.

2. Abrasion over Lt.frontal region 0.5 x 0.5cm

3. Lacerated wound over Rt.parito occipital region 2 x 1cm x bone deep with contused swelling.

4. Lacerated wound over occipital region 1 x 0.5cm with contused swelling.

Dr. P.K. Tiwari (Pw.14), who performed autopsy and drew Post Mortem Report (Ex.P-18) opined that cause of death was coma as a result of head injury.

(4). The only contention of learned counsel for the appellant is that since the incident occurred all of sudden and the appellant did not act in a cruel manner he could not have been convicted and sentenced under section 302 IPC. Learned Public Prosecutor however opposed this contention and urged that intention of appellant to kill the deceased can be gathered from the circumstances.

(5). We have pondered over the submissions.

(6). Rekha (PW.8) is the only eye witness of the incident. In her deposition she stated that:-

^^xkao esa gMdh dqfRr;k dks Hkxkdj jkes-oj vk;k FkkA mlds ikl yB~B FkkA mlus vkrs gh esjs HkkbZ lkgc ds ekFks ij yV~B dh ns ikM+hA**

(Rameshwar came after ousting mad dog out of the village. He was armed with lathi. As soon as he came he inflicted lathi blow on the forehead of my brother.)

In her cross examination she deposed that Rameshwar inflicted only one lathi blow on the person of Rajendra.

(7). The Fourth exception to Section 300 IPC covers acts done in a sudden fight. The term `fight occurring in Exception-4 is not defined in the Indian Penal Code. `Fight postulates a bilateral transaction in which blows are exchanged. The help of Exception-4 can be availed if death is caused:-

(i) without premeditation;

(ii) in a sudden fight;

(iii) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and

(iv) the fight must have been with the person killed.

(8). As already noticed death of Rajendra was caused without premeditation and in a sudden fight. The appellant gave single blow with lathi on

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