M. R. CALLA, J. ( 1 ) THIS Criminal Appeal is directed against the judgment and order of conviction and sentence dated 6-1-1989 passed by the Addl. City Sessions judge, 6th Court, Ahmedabad City in Sessions Case No. 68 of 1988 whereby the five appellants, who were accused Nos. 1 to 5 respectively in the Sessions trial, have been convicted/acquitted and sentenced as under :- (i) Accused-appellant No. 1 has been convicted for the offence under Sec. 302 i. P. C and sentenced to undergo imprisonment for life. (ii) Accused-appellant No. 1 has been further convicted for the offence under Sec. 324 I. P. C. and sentenced to undergo R. I. for a period of 3 years. (iii) Accused-appellant No. 1 has been further convicted for the offence under Sec. 135 (1) of the Bombay Police Act and sentenced to undergo 4 months S. I. All the substantive sentences have been ordered to run concurrently. While the accused No. 1 has been acquitted of the charges levelled against him under S. 143, 148 and 149 I. P. C. , he has been directed to pay compensation under Sec. 357 (3) of the Cri. P. C. to the widow of the deceased mumtaz to the tune of Rs. 8,000. 00 within a period of two months from the date of the order of conviction and sentence. (iv) Each of the accused-appellant Nos. 2 to 5 have been convicted for the offence under Sec. 323 I. P. C. and sentenced to undergo years R. I. However, the benefit of probation under Sec. 360 of the Cr. P. C. and under the Probation of Offenders Act has been given to all of them and they were ordered to be released on probation subject to their observance of good behaviour and also subject to their executing bonds of good behaviour for one year in that respect and surety of Rs. 3,000. 00 each, which was to be executed on or before 10- 1-1989. 1998 (3) J. A. MANSURI v. STATE (Cri. App.)-Calla, J. 2601 each of the accused-appellant Nos. 2 to 5 have been directed to pay Rs. 3,000. 00 each, which was to be executed on or before 10- 1-1989. 1998 (3) J. A. MANSURI v. STATE (Cri. App.)-Calla, J. 2601 each of the accused-appellant Nos. 2 to 5 have been directed to pay Rs. 3,000/ - as compensation to Mumtaz, the widow of the deceased, within two months from the date thereof, if not paid during this period, they shall be called upon to serve the sentence imposed upon them for the charge proved against them under Sec. 323 of I. P. C. However, in view of Sec. 12 of the Probation of Offenders Act, no disqualification is to be attached to these accused-appellant Nos. 2 to 5 on account of their conviction, as aforesaid. (v) Accused-appellant Nos. 2 to 5 have been acquitted of the charges levelled against them under S. 143, 148, 149, 504, 506 and 523 I. P. C. ( 2 ) AT the time when this Criminal Appeal came up before the Court for admission, the prayer for suspension of sentence on behalf of the accused-appellant no. 1 was not pressed on 2-3-1989 and it was ordered that in the case of each of the appellants the time to deposit the amount of compensaion is extended upto 23-3-1989. Thereafter, on 24-3-1989 it was ordered that the direction for payment of compensation in the case of each of the appellant Nos. 2 to 5 is ordered to be suspended on the condition that each of the appellant Nos. 2 to 5 shall deposit 50% of the amount of compensation awarded in the case of each of the appellant Nos. 2 to 5 by the trial Court. on or before 4-4-1989. It is further found from the record that a sum of Rs. 6,000. 00 i. e. , 50% of the amount, which was to be paid as compensation by the accused-appellant Nos. 2 to 5, was paid to Mumtaz, widow of the deceased, as per Sessions Court note dated 3-7-1989, which has been duly noted by the Registry of this Court. ( 3 ) THE prosecution case is that Mohamedtahir Khalil Shaikh along with his brothers including Mukhtar Khalil Shaikh and family members were residing in the chawl of Jupiter Mills at Dudheshwar Road, Ahmedabad. On 16-12-1987 Shaikh mukhtar Khalil returned from his job to his home at about 8 Oclock in the evening. ( 3 ) THE prosecution case is that Mohamedtahir Khalil Shaikh along with his brothers including Mukhtar Khalil Shaikh and family members were residing in the chawl of Jupiter Mills at Dudheshwar Road, Ahmedabad. On 16-12-1987 Shaikh mukhtar Khalil returned from his job to his home at about 8 Oclock in the evening. He instructed his wife Mumtaz to warm up the dinner and meanwhile he went to common latrine opposite his house at a short distance from his house. While he was returning from the latrine, the accused-appellant No. 1 Javedahmed Allauddin was noticed by him making water in the open. Mukhtar reprimaded the accused-appellant javedahmed Allauddin for the said act and thereupon there was hot exchange of words, including hurling of abuses between the two. The wife of Mukhtar, who was waiting for her husband to return from the toilet and was standing on the outer portion of the house along with their minor son, had also noted the quarrel between Mukhtar and Javedahmed. The accused-appellant No. 1 Javedahmed got enraged on being reprimanded by Mukhtar and he ran towards his house nearby in the same Chawl and came back with a knife and with this knife he stabbed Shaikh Mukhtar Khalil twice resulting into severe injuries in the chest and the back. Mukhtar fell down and could not move and he shouted for help. Mohmedtahir also witnessed the assault on his brother and the infliction of knife blows to his brother by the accused-appellant no. 1. Mohmedtahir caught hold of Javedahmed, but the accused-appellant javedahmed holding the knife in his hand got himself freed and in this scuffle between Mohmedtahir and Javedahmed, Mohmedtahir sustained knife injuries on his hand. Accused-appellant No. 1 Javedahmed then fled away. Mukhtar was taken to Civil Hospital, Ahmedabad where he was declared dead by the Hospital authorities. It is also the case of the prosecution that prior to the above incident, about 3 to 4 months ago, Zarina, daughter of Dost Mohmed was to be betrothed to the accused- appellant No. 1 Javedahmed, but it could not materialise and Zarina was engaged somewhere else and as the marriage was fixed, the would be in-laws of Zarina had come to the family of Shaikh Mukhtar Khalil and Shaikh mohmedtahir and at that time also a quarrel had ensued between the family of the accused-appellant Javedahmed and would be in-laws of Zarina. In this regard a chapter case was filed and the mother of the accused-appellant No. 1, namely, gulsanbibi was cited as witness. The family of the accused-appellant Javedahmed had entertained anguish and anger against the family of Mukhtar and Mohmedtahir and thus accused-appellant No. 1 was already nourishing hostility against the family of Mohmedtahir and Mukhtar and, therefore, on being reprimanded by Mukhtar, accused-appellant No. 1-Javedahmed acted violently on 16-12-1987 and inflicted deadly blows by his knife on Mukhtar resulting into his death on that very night. The facts in the background have been alleged to establish the motive. It is also the case of the prosecution that when Bai Mumtaz saw her husband being stabbed at the hands of Javedahmed she raised an alarm and shouted for help and when she tried to go to Dudheshwar Police Chowki, she was prevented from doing so by the appellant Nos. 2 to 5, i. e. , the mother and three sisters of accused-appellant No. 1 and in their attempt to prevent her from going to the police station there was a scuffle in which Bai Mumtaz sustained injuries at the hands of accused-appellant nos. 2 to 5, who had caught hold of her and had thrown up her on the ground and had beaten her. It is also the case of the prosecution that Abdulkarim Indubhai mansuri had assisted the accused-appellant No. 1 in destruction of material evidence against the said accused-appellant and he destroyed the clothes worn by the accused- appellant No. 1 Javedahmed at the time of the commission of the offence. With regard to this incident, which had taken place on 16-12-1987 at about 9-00 p. m. Mohmedtahir lodged the complaint at the Police Station, Dariapur. On the basis of this complaint, a case was registered by Police Station, Dariapur and after investigation the charge-sheet was filed. The trial was held by the Addl. City sessions Judge at Ahmedabad (Court No. 6) in Sessions Case No. 68 of 1988 against six accused persons on the charges, as aforesid. The 6th accused Abdulkarim indubhai Mansuri has been acquitted while accused Nos. 1 to 5 had been convicted and sentenced, as stated above by the Addl. City Sessions Judge (Court No. 6), ahmedabad by judgment and order dated 6-1-1989 in Sessions Case No. 68 of 1988. The 6th accused Abdulkarim indubhai Mansuri has been acquitted while accused Nos. 1 to 5 had been convicted and sentenced, as stated above by the Addl. City Sessions Judge (Court No. 6), ahmedabad by judgment and order dated 6-1-1989 in Sessions Case No. 68 of 1988. Aggrieved from the order of conviction and sentence dated 6-1-1989, the present Appeal has been preferred. ( 4 ) THE learned Counsel for the appellants has referred to the statements of two eye-witnesses, i. e. , P. W. No. 4 Mohamedtahir and P. W. No. 10 Mumtaz-widow of the deceased Mukhtar. It has been submitted by the learned Counsel for the appellants that independent witnesses have not been exemined, who were present, because the incident had taken place in the Chawl where there are number of houses and many persons are living and the timing of the incident was about 9-00 p. m. only. He has also submitted that both these eye witnesses are interested witnesses and while referring to the statement of P. W. No. 3, i. e. , Dr. Rathindra B. Deshmukh, he has argued that about 300 cc. of watery fluid was found in the stomach of the deceased, which was smelling like that of alcohol. He has also argued that on account of the hurling of abuses the accused- appellant No. 1 got enraged and he had acted under sudden and grave provocation. In support of his submission, he has placed reliance on AIR 1962 SC 605 (K. M. Nanavati v. State of Maharashtra ). In this case the supreme Court has observed that the test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Sec. 300 I. P. C. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. On the basis of this principle, the Supreme Court found in the facts of K. M. Nanavatis case (supra) that the wife had confessed to her husband that she had illicit intimacy with the deceased in that case. The Supreme Court noticed that in that case the husband may have momentarily lost his self-control, but then he drove his wife and children to a cinema, went to the shop, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and then drove the car to the office of the deceased and then to his flat and went straight to the bed room of the deceased. By that time, three hours had elapsed and there was sufficient time for the accused to regain his self-control. The Supreme Court did not accept the plea of sudden and grave provocation even in the light of the facts, as stated above. It was also one of the allegations that the accused had seen the deceased inside the bed room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children and the deceased retorted, "am I to marry every woman I sleep with ?". The Supreme Court held that mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not be considered to be a provocation for the murder and, therefore, it was held in the facts of that case that the provisions of Exception I to Sec. 300 of I. P. C. were not attracted. On the question of sudden and grave provocation this authority hardly helps the case of the appellants in the facts of the present case. On the question of sudden and grave provocation this authority hardly helps the case of the appellants in the facts of the present case. No details about the actual dialogue between the accused and the deceased have come on record nor the details of the abuses or the abusive language are there and on the parity of the reasoning given by the Supreme Court in the case, as aforesaid, we find that such a dialogue between the accused-appellant No. 1 and the deceased could hardly afford a sudden and grave provocation to the accused so as to lead to the killing of the deceased. ( 5 ) LEARNED Counsel for the appellants then argued that in the facts of this case, at the most it may constitute a case of culpable homicide not amounting to murder under Sec. 304 I. P. C. and the case is covered by the 4th Exception under Sec. 300 i. P. C. He has submitted that there is no case of premeditation. It was a case of sudden fight in a sudden quarrel and in the heat of passion upon a sudden quarrel the accused acted and in the facts of this case it cannot be said that the accused had taken any undue advantage or had acted in a cruel or unusual manner. He has pointed out that at the time of the commission of the offence, the appellant No. 1 was a boy of 23 years of age and had studied upto 12th Standard and it is very clear that the young blood acted in the heat of the passion in this sudden fight and it cannot be said that he had taken any undue advantage or that he had acted in a cruel or unusual manner. He has also referred to the entry in the Police Station Diary Exh. 48 at page 275 of the paper book which shows that it was a case of sudden fight on a very trivial issue of accused-appellant No. 1 making water in the open in the chawl where many houses were situated and for that reason there was a hot exchange of words and abuse and the background of the previous animosity is also reflected in this entry. ( 6 ) WHILE we do not find any substance in the argument raised by the learned counsel for the appellants that other independent witnesses have not been examined because we find that both the sides were living in the same Chawl and neighbours, who are living in the same area, may not like to enter into the controversy between the two families, we also do not find any substance in the argument of the learned counsel for the appellants that the eye witnesses P. W. No. 4 and P. W. No. 10 are interested witnesses merely because they happened to be the brother and wife of the deceased, on this ground their testimony cannot be discarded when their evidence is otherwise believable. Nothing turns on the question even if it is assumed that the deceased had consumed alcohol. Therefore, we now proceed to consider the argument of the learned Counsel for the appellants as to whether it was a case covered by exception 4 under Sec. 300 so as to bring the offence under Sec. 304 I. P. C. , from that of Sec. 302 I. P. C. ( 7 ) THE learned Counsel for the appellants has relied upon AIR 1989 SC 1094 (Surinder Kumar v. Union Territory, Chandigarh ). In para 6 of this judgment, the supreme Court has held that to invoke this exception the following requirements must be satisfied : (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. ( 8 ) IT is evident from the statements of P. W. No. 4 and P. W. No. 10 that it was a case of sudden fight, there was no premeditation and also that the act done in a heat of passion. Now the question remains as to whether the accused-appellant No. 1 had not taken any undue advantage or acted in a cruel manner. For that purpose the learned Addl. P. P. has referred to the evidence of P. W. No. 3 - Dr. Now the question remains as to whether the accused-appellant No. 1 had not taken any undue advantage or acted in a cruel manner. For that purpose the learned Addl. P. P. has referred to the evidence of P. W. No. 3 - Dr. Rathindra b. Deshmukh, who had conducted the autopsy and who had found that there was a stab wound on left side of the back at the level of 6th thoracic spine, there was yet another stab wound on front of the left side of chest at its upper lateral aspect and further that there was an incise wound on postera-medial aspect of left forearm and one bruise and two abrasions. All these injuries have been stated to be antemortem in nature. Reference has also been made to the internal injury and it has been opined that the death was due to haemorrhage and shock as a result of stab injuries sustained. There is no doubt that the accused-appellant No. 1 had come back with a knife from his home but the fact cannot be lost sight of that their residence situate quite nearby and he took no time in coming back with the knife. In such a case, when the knife is used, the wounds are bound to be caused and as has been observed in Surinder Kumars case (supra) the number of wounds caused during the occurence is not a decisive factor. What is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Where, on the 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 surinder Kumars case (supra) the vacant possession of the kitchen was demanded and when the same was declined a quarrel took place in which filthy abuses were uttered leading to a heated argument between the accused on one side and the deceased on the other side. In the course of this heated arguments, the knife was taken out by the brother of the deceased. Accused in that case then went to the adjoining kitchen and returned with a knife. In the course of this heated arguments, the knife was taken out by the brother of the deceased. Accused in that case then went to the adjoining kitchen and returned with a knife. In that case, the High Court had refused to grant him the benefit of Exception 4 on the ground that he had acted in a cruel manner, but the Supreme Court did not agree and opined that merely because three injuries were caused to the deceased, it could not be said that he had acted in a cruel and unusual manner and accordingly accused was convicted under Sec. 304 Part I, i. P. C. and was directed to suffer R. I. for seven years. ( 9 ) RELIANCE has also been placed by the learned Counsel for the appellants on air 1989 SC 1822 (State of U. P. v. Jodha Singh ). In this case, the Supreme court found that a wordy quarrel had taken place and the quarrel had led to the use of weapons by both the parties against each other. The Supreme Court found it to be a case which would fall under Exception 4 to Sec. 300 I. P. C. The next authority, on which the reliance has been placed, is Hem Raj v. State (Delhi Administration), reported in AIR 1990 SC 2252 . The Supreme Court noticed that it was a case of suden quarrel and the accused had given a single stab which unfortunately landed on the chest of the deceased causing an injury, which in the opinion of the Medical officer was sufficient in the ordinary course of nature to cause death and in absence of any positive proof that the appellant caused the death of the deceased with the intention of causing the death or intentionally inflicted the injury which in the ordinary course of nature was sufficient to cause death, it was found that neither clause I nor Clause III of Sec. 300 attracted and the accused was found to be punishable under Sec. 304 Part II, but not under Sec. 302 I. P. C. ( 10 ) WE have gone through the aforesaid cases and find that what has been observed by the Supreme Court in Surinder Kumars case (supra) is the nearest case to the facts of the present case. So far as the intention of the accused-appellant No. 1 is concerned, it is very clear from the fact that he had gone to his house, came back with the knife and stabbed the deceased causing injuries on thoracic spine and on the left side of the chest, which were very vital, recovery of the weapon of offence, i. e. , knife is proved and the same has not been assailed also and rightly so, and, therefore, in the light of the discussions, as aforesaid, we find that this case is covered by Exception 4 under Sec. 300. We find it a case for conviction under Sec. 304 Part I of I. P. C. and not under Sec. 302 I. P. C. Thus, the offence under Sec. 304 Part I of the I. P. C. against the accused-appellant No. 1 is made out by oral as well as medical evidence and the recovery of the knife. ( 11 ) SO far as the conviction of the appellant No. 1 under Sec. 324 is concerned, the same is established by the evidence of P. W. No. 4 and P. W. No. 1 and Medical certificate Ex. 32 and we do not find any reason to take a different view than what has been taken by the learned Sessions Judge and there is nothing wrong with his conviction under Sec. 324 I. P. C. as also for the offence under Sec. 135 (1) of the bombay Police Act. ( 12 ) SO far as the conviction of accused-appellant Nos. 2 to 5 under Sec. 323 is concerned, the same is established by the evidence of P. W. No. 10 Mumtaz and the evidence of P. W. No. 2 vide Exh. 33 read with the medical report Ex. 34. In any case these appellants have already been given the benefit under the Probation of Offenders Act and we do not find any reason to interfere with the orders passed by the trial Court with regard to these appellant Nos. 2 to 5. Whereas they have paid only 50% of the amount of compensation and the payment of the 50% was stayed by this Court, these appellant Nos. 2 to 5 are directed to make the payment of the due amount of compensation to Mumtaz, i. e. , widow of the deceased. Mr. 2 to 5. Whereas they have paid only 50% of the amount of compensation and the payment of the 50% was stayed by this Court, these appellant Nos. 2 to 5 are directed to make the payment of the due amount of compensation to Mumtaz, i. e. , widow of the deceased. Mr. Shethna seeks two months time for making the payment of the remaining amount of compensation and accordingly two months time is granted, failing which they will suffer the consequences in terms of clause (viii) of the trial Courts operative part of the order. In case the appellant Nos. 2 to 5 deposit the amount in this Court, the nazir Department may accept the same. Accordingly, the appeal in respect of appellant Nos. 2 to 5 fails and the same is hereby dismissed. ( 13 ) SO far as the appellant No. 1 is concerned, the conviction and sentence under sec. 324 I. P. C. and Sec. 135 (1) of the Bombay Police Act, as recorded and awarded by the trial Court, does not warrant any interference by this Court but his conviction under Sec. 302 I. P. C. and sentence of imprisonment for life are set aside and the conviction is altered to that under Sec. 304 Part-I I. P. C. and the sentence is reduced from imprisonment for life to that of 7 years R. I. and a fine of Rs. 8,000. 00 to be deposited within a period of two months from today. We further direct under Sec. 357 (3) Cr. P. C. that this amount of fine of Rs. 8,000. 00, so recovered from the appellant No. 1, shall be paid to Bai Mumtaz, widow of the deceased, immediately on being recovered and besides this, the amount of Rs. 8,000. 00, as ordered in Clause (vi) of the operative part of the trial Courts order, shall also be paid by this appellant to Mumtaz, widow of the deceased, within a period of two months from today. In case the appellant No. 1 deposits the amount in this Court, the Nazir Department may accept the same. We further direct that in case the appellant No. 1 fails to deposit the due amounts, as ordered above, he shall have to further undergo R. I. for a period of 3 months. Appeal of the appellant No. 1, therefore, partly succeeds, as above. We further direct that in case the appellant No. 1 fails to deposit the due amounts, as ordered above, he shall have to further undergo R. I. for a period of 3 months. Appeal of the appellant No. 1, therefore, partly succeeds, as above. In case the amount of Rs. 6,000. 00 is deposited by the appellant Nos. 2 to 5 and the amount of Rs. 16,000. 00 is deposited by the appellant No. 1, i. e. , an amount of rs. 22,000/- in all, the Registry shall immediately send this amount through a Banks demand Draft or Pay Order to Mumtaz, the widow of the deceased, with a registered covering letter that this is the amount of compensation granted to her by the Court in this case. ( 14 ) WE are informed by the learned Addl. P. P. that appellant No. 1, namely, javed Ahmed Allaudin Mansuri was released on parole on 23-1-1990 for a period of 21 days on the ground of his mothers sickness on the condition that he should remain at Godhra but instead of staying at Godhra, where his mother was sick, he was staying in Ahmedabad and, therefore, he was arrested 9 days before the date on which the 21 days period was to expire, in view of the breach of the condition to remain at Godhra. The learned Addl. P. P. has further informed that this appellant was again released on parole on 30-12-1993 for a period of 7 days and this period was further extended for 7 days but the appellant did not surrender on expiry of this 14 days period for which he was released on parole on the ground of his mothers sickness and was ultimately arrested on 10-10-1997 by the Madhupura Police Station and that he has remained out in breach of the condition on which he was released on parole for a period of 1,365 days in all, for which jail punishment has also been given to him. It has also been pointed out by the learned Addl. P. P. that this appellant had also committed offences under S. 325 and 337 I. P. C. for which C. R. No. I- 300 of 1997 was registered against him in Police Station, Madhupura and it was in connection with this offence that he was arrested on 10-10-1997. It has also been pointed out by the learned Addl. P. P. that this appellant had also committed offences under S. 325 and 337 I. P. C. for which C. R. No. I- 300 of 1997 was registered against him in Police Station, Madhupura and it was in connection with this offence that he was arrested on 10-10-1997. It is, therefore, ordered that the concerned authority would consider the question of his release after due verification of the factual position and the facts, as stated by the learned Addl. P. P. , in accordance with law and subject to the conditions, as have been detailed out by us in the earlier part of this order. Appeal on behalf of the appellant No. 1 is, therefore, partly allowed in the terms as aforesaid. .