B. S. KAPADIA, J. U. MEHTA, J. ( 1 ) THE present appeal is filed by the original accused who is convicted for the offence under Sections 302 and 324 IPC and imposed sentence of R. I. for life R. I. for foul months and R. I. for four months with a direction that substantive sentences to run concurrently. He is convicted and sentenced by the learned Addl. Sessions Judge Valsad at Navsari in the Sessions Cast No. 96/83 by the judgment and order dt. 18-5-1984. ( 2 ) THE accused was charged for the offence under Section 302 IPC on the allegation that about 8-00 p. m. on 21-8-83 he voluntarily and intentionally inflicted fatal injuries by knife blows on his brother Ravjibhai Ranchodbhai in Village Gandevi of Valsad District. He was further charged for the offence under Section 324 IPC for causing injury to witness Ikuben. He was also charged for the offence under Section 324 IPC for causing injury to Nanubhai Ravjibhai. The accused had pleaded not guilty. ( 3 ) THE short facts of the prosecution case can be stated as under: The accused and deceased are brothers. On the date of the incident the accused had gone to the house of his deceased-brother who was residing just near his house in Havadia Falia in Village Gandevi. They were talking with each other. At that time Ikuben daughter of the decreased was preparing food inside the house. Her mother Gangaben was cleaning the utensils outside the house and her brother Nanubhai was also in the house. The accused called Ikuben and gave her Rs. 3. 5 for bringing liquor and she brought the same and gave it to the accused and again she went for prepar- ing food. There was some verbal quarrel between the deceased and the accused and thereafter they started fighting with each other. Nanubhai and Ikuben came out. Nanubhai tried to release his father and for that purpose he gave a blow with an wooden bat to the accused. Thereafter accused gave blows with the knife to the deceased. That was also witnessed by Ikuben who had come out of the house. Gangaben also saw that the accused had given two to three blows with the knife to her husband. Even when Nanubhai was trying to release his father the accused gave him blows with knife. Thereafter accused gave blows with the knife to the deceased. That was also witnessed by Ikuben who had come out of the house. Gangaben also saw that the accused had given two to three blows with the knife to her husband. Even when Nanubhai was trying to release his father the accused gave him blows with knife. Ikuben was also given a knife blow on her head by the accused when she tried to release her father. ( 4 ) IT is further the prosecution case that the accused-appellant went imme- diately after the incident to the house of Police Patel at about 9. 45 p. m. but the Police Patel was not there and his wife Nilaben was there and the accused told her that twice he had quarrel with his brother Ravji and he has disposed him of. Thereafter it appears that he had ran away to the outskirt of the village and on the next day he himself presented before the Police and gave the FIR. After investigation he was charge-sheeted and ultimately convicted and sentenced as aforesaid. ( 5 ) MR. P. M. Thakkar learned Advocate for the appellant has read out be- fore us the evidence of Gangaben Nanubhai and Ikuben who are the eye. witnesses. They have fully supported the prosecution case. They are natural witnesses who would have remained present at the time of incident and the version narrated by them in the deposition is quite natural and reliable. Their version is also supported by the medical evidence of Dr. Bikhubhai who has deposed to the effect that Ikuben had come to him as she had injury and on inquiry she told that her uncle had given knife blow. According to him she further stated that her brother Nanu was also given knife blow by her uncle. She was given medical treatment. Similarly Dr. Hiralal aged 74 years has also given the deposition to the effect that Nanubhai was brou- ght to his residence at about 9. 00 to 9. 30 p. m. on the relevant day and he had bleeding injury on the forehead. On inquiry he told that his uncle had beaten him. He made dressing and gave injection to Nanubhai. Thus on the point of injury to Nanu and Iku there is support of evidence of independent persons namely Dr. Bikhubhai and Dr. Hirabhai. 00 to 9. 30 p. m. on the relevant day and he had bleeding injury on the forehead. On inquiry he told that his uncle had beaten him. He made dressing and gave injection to Nanubhai. Thus on the point of injury to Nanu and Iku there is support of evidence of independent persons namely Dr. Bikhubhai and Dr. Hirabhai. On the point of injury to the deceased Dr. Jyotiben Nayak who had performed the post-mortem on 22 found the following injuries:1 Incised wound 1 1/2 x 1/2 on left infra clevicular region about 4 deep into the chest cavity. 2 Incised wound 1/2 X 1/2 deep below spine of scapula 2 left to mid- line. 3 Incised wound 1/2 skin deep on dorsum of left hand. It was also found that there was a fracture of second left rib. On internal examination it was found that there was lot of blood in the cavity and the lung was floating. She has also stated that death was due to shock and hemorrhage following grave injury over left side of the chest. ( 6 ) THERE is also evidence of Gangaben who is supporting the version of the prosecution as an eye-witness. She has given the complete description under what circumstances and in what manner the injuries were inflicted on her hus- band as well as on her two children. In the cross-examination she has stated that both the brothers were sitting and all of a sudden the incident took place. It is pertinent to note that in the further statement recorded under Section 313 of Cr. PC the accused has admitted that he was sitting on the ota of Ravjibhai though he has denied the other incriminating circumstances. Apart from other evidence the evidence of the aforesaid eye withnesses corrobo- rated by the medical witnesses clearly establishes that the accused had infli- cted blows with the knife on the deceased Ravjibhai and on account of the said injuries said Ravjibhai died. On account of this overwhelming and un- impeacheable natural and truthful evidence of the prosecution witnesses Mr. Thakkar also could not seriously challenge the same. On account of this overwhelming and un- impeacheable natural and truthful evidence of the prosecution witnesses Mr. Thakkar also could not seriously challenge the same. It is therefore established by the prosecution beyond reasonable doubt that the accused had inflicted three knife blows on the deceased and on account of the injury on the chest there was lot of hemorrhage and he died on account of the said in- juries and further that injuries were caused to Nanubhai and Ikuben by the accused with the knife. ( 7 ) THE next question would be what offence is committed by the accused- appellant. The trial Court has committed the accused for the offence under Section 302 IPC for causing injuries to the deceased and for the offence under Section 324 IPC for causing injuries to Nanu and Ikuben. ( 8 ) MR. P. M. Thakkar submits that looking to the facts and circumstances of the case it is clear that the brothers were on good terms and therefore the accused had gone to the house of the deceased Ravji They were chit-chatting and thereafter the accused had called Iku for bringing liquor and he gave Rs. 3. 50 to Iku who brought the same. They took the same and thereafter there was some verbal quarrel which resulted into fighting inter se between the bro- thers and when Nanu gave a stick blow the accused was excited and suddenly he inflicted injuries on the deceased as also to Nanu and Iku. ( 9 ) IT may be noted that this position cannot be denied because the prosecu- tion witness Gangaben widow of Ravjibhai also stated in her deposition that the incident took place all of a sudden when two brothers were sitting on the ota and chit-chatting. It is also clear from the injuries caused to the deceased that two injuries on the dorsum as well as on the scapula cannot be said to be very serious. Therefore it cannot be said that the accused had acted brutally or in a cruel manner. ( 10 ) RELYING on this position Mr. Thakkar submits that this case would clearly fall under Exception (4) of Section 300 IPC. Therefore it cannot be said that the accused had acted brutally or in a cruel manner. ( 10 ) RELYING on this position Mr. Thakkar submits that this case would clearly fall under Exception (4) of Section 300 IPC. As per 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 off- enders having taken undue advantage or acted in a cruel or unusual manner. In this case it is clear that the accused had not gone for taking a knife and therefore in the heat of passion on a sudden quarrel he had inflicted the blows which are not brutal. Mr. Thakkar therefore submits that this case is clearly covered by Section 304 Part-I IPC. For that purpose he has placed reliance on the judgment of the Supreme Court in the case of Surinder Kumar v. Union Territory Chandigarh reported in Judgments Today 1989 (1) S. C. 505. It was submitted in the said case that the appellant inflicted only one blow on the neck causing bleeding injury. In the melee the appellant in- flicted 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. In the said case it was also submitted that there was no previous ill-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 Section 300 IPC was clearly attracted. Dealing with the said submissions after quoting Exception 4 to Section 300 the Supreme Court has observed as under:to invoke this exception four requuirements 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 advan- tage 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 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 unpremeditated 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 cause injuries one of which proves fatal he would be entitled to the benefit of this exception provided he has not acted cruelly. . . . Considering the facts of the said case Supreme Court has set aside the conviction and sentence of the accused passed under Section 302 IPC and con- victed the original accused for the offence under Section 304 Part-I IPC and directed to to suffer RI for seven years. ( 11 ) FACTS and circumstances of the present case are similar to the facts of the case decided by the Supreme Court. In this case also both the brothers had cordial relations. They were sitting on the ota of the house of the deceased and were chit-chatting. The accused called for liquor and thereafter there was a sudden quarrel and in the heat of passion knife blows have been inflicted with the knife which was handy with the accused. Looking to the injuries caused to the accused also it cannot be said that they were brutal and that the accused had acted in a cruel manner. Therefore all the aforesaid four requirements for app- lication of Exception-4 to Section 300 IPC are complied with namely it was a sudden fight there was no premeditation the act was done in a heat of passion and the assailant had not taken any undue advantage or acted in a cruel manner. ( 12 ) WE are therefore of the view that in this case the conviction of the present appellant under Section 302 IPC and the sentence imposed on him for the said offence deserve to be set aside. ( 13 ) IN result the appeal stands partly allowed. The Conviction and sentence of the accused-appellant under Section 302 IPC are hereby set aside. ( 13 ) IN result the appeal stands partly allowed. The Conviction and sentence of the accused-appellant under Section 302 IPC are hereby set aside. The accused-appellant is convicted for the offence under Section 304 Part-I IPC for causing death of his brother Ravjibhai and is sentenced to undergo R. I. for seven years. The order of conviction and sentence passed against the accused appellant for causing injuries to Ikuben and Nanubhai are hereby confirmed. All the substantive sentences are ordered to run concurrently. (RPV) appeal partly allowed. .