J. N. BHATT, J. ( 1 ) IN this appeal under Sec. 374 of the Code of Criminal procedure, 1973 ("the Code"), the only question with which we are confronted to examine and adjudicate upon is whether the appellant-accused No. 1 is qualified and is entitled to benefit of provisions of Exceptions 1 and/or 4 to Sec. 300 of the indian Penal Code ("i. P. C. ") prescribing what is murder. The prosecution case, shortly, stated is that, on 8-10-1991, at about 8 p. m. when deceased Bhailal Vasava was at his place, original accused No. 3 Mathurbhai jesingbhai Vasava started firing crackers as a result of which, the bullocks of Bhailal were frightened and as such, started jumping. Therefore, the deceased told accused no. 3 Mathur to stop cracker-firing. At that time. Ganpat Hathisinh, accused No 2 and Hathisinh Madhabhai, accused No. 4 were also present. They started quarrelling. On seeing this, Pravin son of the deceased Bhailal ran to his elder brother Rameshs place and informed him about the incident. That is how, Ramesh and his wife Kapila, immediately, went to the venue where the quarrel was going on. ( 2 ) ACCORDING to the prosecution case, accused No. 2 Ganpat Vasava had given a stick blow on the head of deceased Bhailal and the deceased had, as such, reciprocated it with a piece of brickbat to accused No. 4 Hathisinh. Thereafter. complainant Ramesh, his wife Kapila and the deceased went to Nagjibhais place to inform the police on telephone. In the meantime, the appellant-accused No. 1 went there where the deceased was standing outside - far from the house of nagjibhai and he started giving successive blows with a sword on the person of deceased Bhailal which culminated into his death. ( 3 ) UPON complaint of the son of the deceased, Ramesh, Exh. 13, the offence came to be registered against the appellant and three other accused persons who, upon investigation by the police, were sent up for trial in Sessions Case No. 16 of 1992 for the. offences punishable under Sees. 302 and 323 read with Sec. 114 of the I. P. C. and in addition to that, accused Nos. 2 and 3 were also charged for the offence punishable under Sec. 135 of the Bombay Police Act. offences punishable under Sees. 302 and 323 read with Sec. 114 of the I. P. C. and in addition to that, accused Nos. 2 and 3 were also charged for the offence punishable under Sec. 135 of the Bombay Police Act. ( 4 ) IN support of the charges against the accused persons, prosecution relied on the following witnesses : p. W. 1 Dr. Uday Ramchandra. Exh. 10 " 2 Ramesh Bhailalbhai " 12 " 3 Kalpana Rameshbhai " 17 " 4 Rasulbhai Dadabhai " 18 " 5 Pravin Bhailalbhai " 21 " 6 Mubarakbhai B. " 22 " 7 Gajendra Shankerrao " 25 " 8 Nagjibhai Paragbhai " 28 " 9 Bharatsinh Mangalsinh " 29 prosecution also placed reliance on the following documentary evidence : post mortem notes exh. 11 complaint Cross-complaint 13. 16 map of the scene of offence. 32 extracts of station diary 35 and 36 ( 5 ) UPON examination and evaluation of the evidence led by the prosecution. the trial Court held the present appellant-accused No. 1 guilty for the offence punishable under Sec. 302 and sentenced him for imprisonment of life and fine of rs. 2. 000/- in default. R. I for six months and acquitted the accused persons of the charge under Sec. 323 read with Sec. 114. I. P. C. as also Sec. 135 of the Bombay police Act. In the result, at the instance of original accused No. 1. the impugned order of conviction and sentence under Sec. 302 has been questioned before us in this appeal under Sec. 374 of the Code. ( 6 ) AS observed by us at the outset, the only question which has been raised before us is that the trial Court has committed serious error in not giving benefit of provisions of Exceptions 1 and/or 4 of Sec. 300 of the I. P. C. In course of repeated submissions on this count, it has been pointed out from the evidence of eye-witness- complainant-Ramesh that the accused was initially not present but in view of the fact that his father was beaten and injured by deceased Bhailalbhai, he got provoked and so much so that he lost control of himself, rushed to Bhailalbhai who was standing near the house of Nagjibhai and went on giving sword blows. It was, therefore, submitted before us that since there was incriminating action on the part of accused No. 1 generating great provocation. Exceptions I and/or 4 to Sec. 300 would be attracted and the accused will be entitled to benefit thereof. This submission is seriously countenanced by the learned Additional Public Prosecutor Mr. K. C. Shah. Well, in order to succeed in availing statutory benefit engrafted in Exceptions , 1 and/or 4, the accused is obliged to prove or to show from the evidence led, the following aspects : (I) there was sudden fight; (II) there was no pre-meditation; (III) the act was done in a heat of passion, and (IV) that the assailant had not taken any undue advantage or acted in a cruel manner. If the aforesaid ingredients, the burden of proof of which rests on the person who propounds it or claims it, are established, the offence will be culpable homicide not amounting to murder; whereas, in case of claiming benefit of Exception 1. the three provisos, first, secondly and thirdly must be shown to have existed. ( 7 ) NO doubt, it is true that the cause of quarrel is nut relevant nor it is relevant who offered provocation or started assault. It is also true that number of injuries or injuries caused during the occurrence is not the only decisive factor. What is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in heat of passion or heat of anger. Equally true. is the fact that the offender-must not have taken any undue advantage of the situation. He also must not have acted in a cruel manner. Where on sudden provocation or quarrel, the person in the heat of moment picks up a weapon which is handy and causes injuries one of which proves fatal, he would be obviously entitled to the benefit of Exceptions and in that case, though death has occurred, it would be culpable homicide not amounting to murder punishable under Sec. 304-1 of the i. P. C. . as the case may be. ( 8 ) AFTER having taken a close look into the testimonial collections, we have. successfully, noticed that the following ingredients and aspects have remained unimpeachable : (I) In light of the evidence of eye-witness Ramesh. P. W. 2 Exh. as the case may be. ( 8 ) AFTER having taken a close look into the testimonial collections, we have. successfully, noticed that the following ingredients and aspects have remained unimpeachable : (I) In light of the evidence of eye-witness Ramesh. P. W. 2 Exh. 12, son of the deceased, supported by the evidence of P. W. 3-Kapila. wife of the complainant. Exh. 17. it becomes quite evident that there was no, as such, question of any provocation much less sudden and grave provocation. (II) The manner and mode in which the actual incident under scrutiny before us arose, was preceded by a fight between deceased Bhailal and his group and the father of accused No. I-appellant Hathisinh with the use of stick which is quite evident from the cross-complaint produced at Exh. 16. It was lodged by the father of the accused Hathisinh which itself speaks that it was the outcome of the quarrel and fight. Hence presence is evident. (III) Upon analysis of the facts, a conclusion with the yardstick of a reasonable and prudent man would be that it was not, as such. a case of provocation at all. The fight which preceded before the main incident came to be revived by accused No. 1 in company of three other accused. (IV) Not only that. if we were to hold that there was case of sudden provocation. benefit of Exceptions 1 and/or 4 to Sec. 300 cannot be afforded to the accused for the simple reason that the impediment that the accused must not have acted in unusual or cruel manner remained unclear. In other words, looking to the type of injuries apart, number of injuries apart, manner and mode in which successive blows came to be inflicted upon the person of the deceased by accused No. 1 with the help of deadly weapon like sword and some of them on the vital part of the body even leading to chop wound on the neck. there would not be slightest hesitation in finding that even in the alternative, the accused cannot be said to have acted in usual fashion and manner. In fact, we are satisfied that the accused had, as such, acted in a cruel manner apart from being unusual which as such, is indicative not of radiating an imprint of provocation but vindictiveness or revenge. In fact, we are satisfied that the accused had, as such, acted in a cruel manner apart from being unusual which as such, is indicative not of radiating an imprint of provocation but vindictiveness or revenge. ( 9 ) IT cannot also be said that that incriminating action of the accused was not untainted with taking undue advantage as the deceased whose life was cut short by the accused by giving almost seven successive blows with the sword and some of them on the vital part of the body was aged about 60 which is nearer to the average mortality age in India; whereas the accused was 41 years old. The deceased was unarmed. The accused not only that he was armed with deadly weapon like sword not as if he had picked up from the surrounding place being handy but as such, had run to his house and had brought the sword and had given successive seven blows one after other. ( 10 ) IN our opinion, the trial Court has, rightly, appreciated and evaluated the testimony of eye-witness Ramesh, P. W. 2, son of the deceased and P. W. 3 Kapila, wife of Ramesh, the second eye-witness and P. W. 4 Rasulbhai Dadabhai. eye-witness who have, fully, reinforced the version of the prosecution. Though a contention is not raised about the nature of death, the prosecution has successfully established that the deceased died a homicidal death, by leading evidence of the medical officer, p. W. 2- Dr. Uday Ramchandra. at Exh. 10. In view of the evidence on record, the prosecution has, certainly, established that the deceased died a homicidal death. Section 299 provides for culpable homicide. ( 11 ) THEN, the question which is required to be examined is whether culpable homicide is proved to be murder as defined in Sec. 00 or whether it is shown to be falling within any one of the Exceptions so that complicity can be said to be culpable homicide not amounting to murder. Repeated attempts were made to convince us that homicidal death of deceased Bhailal was not a murder and, therefore, was not punishable under Sec. 302 but was punishable under Sec. 304. However, the same have no legal reason or credence from the evidence relied on by the prosecution which we have extensively examined. Repeated attempts were made to convince us that homicidal death of deceased Bhailal was not a murder and, therefore, was not punishable under Sec. 302 but was punishable under Sec. 304. However, the same have no legal reason or credence from the evidence relied on by the prosecution which we have extensively examined. Therefore, in our opinion, this is not a case of culpability of the accused of culpable homicide not amounting to murder but is a simple and clear case of murder as defined under Sec. 300 and. therefore, is punishable under Sec. 302. ( 12 ) RELYING on the decision of the Honble Apex Court in Surinder Kumar v. Union Territory, AIR 19x9 SC 1094. it was submitted that the provisions of Sec. 302 are not attracted to the present case. It was also submitted that this decision is followed by this Court in Patel Chhotubhai Ranchhodbhai v. State, 1990 (I) GLH 43 . After having examined, dispassionately, both the decisions, we have no hesitation in holding that ratio of the decisions is not applicable to the facts of the present case. It may be mentioned that there would not be any question of applicability of provisions of Exception 1 to Sec. 300 in the present case technically also because the accused was not present at the relevant time when the incident was preceded which is alleged to have given so much sudden and grave provocation that he could not resist the temptation of giving seven successive sword blows losing his selfcontrol. Therefore, legally and factually, both, the Exceptions to Sec. 300 are not applicable to the facts of the present case and the impugned judgment and order of the trial Court in Sessions Case No. 16 of 1992 holding the accused-appellant before us guilty for the offence punishable under Sec. 302 is quite justified requiring no interference. Since the offence under Sec. 302 is held proved, rightly, by the trial Court and we affirm it, there would not arise any question of quantification of sentencing as the trial Court has awarded the minimum sentence. In the circumstances, we have no other alternatives but to-dismiss this appeal in its entirety. The same is. accordingly, dismissed. .