JUDGMENT AHMADI, J. :— The appellant, having been convicted by the learned Sessions Judge. Chandigarh under S. 302, IPC, and his appeal against conviction having been dismissed by the High Court of Punjab and Haryana, has preferred this appeal by special leave. The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh. The facts emerging from the evidence of these two main witnesses coupled with the evidence of the other prosecution witnesses may be stated as follows : PW 5 Mangal Dass was the owner of House No. 3220 in Sector 23-D, Chandigarh, consisting of the ground floor and the first floor. The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted; two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted accused). PW 2 Kesho and his brother Nitya Nand (deceased) belonged to village Narnaul to which PW 4 also belonged. They had come to Chandigath a couple of years back and were sharing the accommodation with PW 4. As Amrit Lals marriage was scheduled on December 7, 1974, a request was made to PW 4 by Sikander Lal to permit the use of the kitchen for a few days. Accordingly, the possession of the kitchen was delivered to ,Sikander Lal on December 4, 1974 on a clear understanding that it would be returned to PW 4 after the marriage. As the possession of the kitchen was not returned immediately after the marriage, PW 2 and his deceased brother Nitya Nand demanded possession thereof from Sikander Lal. They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975. However, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family mambers of Sikander Lal are stated to have entered the kitchen. They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975. However, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family mambers of Sikander Lal are stated to have entered the kitchen. It may here be mentioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge, According to the learned Sessions Judge, the possession of the kitchen was not delivered to PW 4 till January 3,1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life. On this aspect of the matter, the High Court has not expressed any opinion. On a perusal of the relevant evidence we are inclined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct. 2. On January 3,1975, at about 7.15 p.m., P.W. 2 and his deceased brother had a heated argument with the appellant and his brother Amirt Lal in regard to the return of the kitchen. In the course of this heated exchange P.W. 2 is alleged to have showered filthy abuses. Although P.W. 2 denies this fact, P W. 4 has admitted the same. P.W. 2 also threatened to throw out the utensils and lock the kitchen. Since P.W. 2 was uttering filthy abuses in the presence of the appellants sister and Nitya Nand did not restrain him. the appellant got enraged, went into the kitchen and returned with a knife with which he inflicted one blow on the neck of P.W. 2 causing a bleeding injury. In the melee the appellant inflicted three knife blows to Nitya Nand one on the shoulder, the other on the elbow and the third on the chest. as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute. 3. as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute. 3. The appellants defence was that on the date of the incident P.W. 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that P.W. 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language P.W. 2 began to throw out the utensils from the kitchen. When the appellant tried to stop him from doing so, P.W. 2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door. P.W. 2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries, in question. The Courts below have. however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to P.W. 2 and the deceased Nitya Nand. 4. The learned Advocate for the appellant submitted that there was no previous will between the parties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premeditation and hence Exception 4 to S. 300, I.P.C. was clearly attracted. On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception. He submitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner. The appellants counsel countered by pointing out from the evidence of P.W.1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain P.W. 2. 5. The appellants counsel countered by pointing out from the evidence of P.W.1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain P.W. 2. 5. Exception 4 to S. 300 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. Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault." 6. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremediated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and P.W. 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appellant was disinclined to hand over possession of the kitchen, P.W. 2 quarrelled and uttered filthy abuses in the presence of the appellants sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and P.W. 2 and his deceased brother on the other. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and P.W. 2 and his deceased brother on the other. In the course of this heated argument it is the appellants case that P.W. 2 took out a knife from his pant pocket. This part of the appellants case seems to be probable having regard to the antecedents of P.W. 2. It is on record that P.W. 2 was convicted at Narnaul on two occasions under S. 411, I.P.C. and his name was registered as a bad character at the local police station. It was presumably because of this reason that, he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by P.W. 4. When the appellant found that P.W. 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to P.W. 2 it would appear that P.W. 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held P.W. 2 to facilitate an attack on him by the appellant. It further seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother P.W. 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level on the 5th rib about 2" below the nipple. It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of P.W. 2 was a self-inflicted wound and had therefore acquitted the appellant of the charge under S. 307, I.P.C., against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that P.W. 2 sustained the injury in the course of the incident. We have, however, proceeded to examine this matter on the premise that P.W. 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after P.W. 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latters sister, tempers ran high and on P.W. 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards P.W. 2 and inflicted a simple injury on his neck. It would be reasonable to infer that the deceased must have intervened on the side of his brother P.W. 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the incident we are inclined to think that the appellant was entitled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under S. 304, Part 1, I.P.C. and direct him to suffer rigorous imprisonment for 7 years. 7. In the result, this appeal partly succeeds. The order of conviction and sentence passed under S. 302, I.P.C. is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under S. 304, Part 1, I. P.C. and is directed to suffer rigorous imprisonment for 7 years. Appeal allowed partly. For Citation : AIR 1989 SC 1094