U. S. TRIPATHI, J. Appellant Ram Chabiley has preferred this appeal from jail against judgment and order dated 26-8-1980 passed by Sri K. S. Dubey, the then learned Vlth Additional Sessions Judge, Kanpur (Metropolitan area) in Sessions Trial No. 22 of 1980 convicting the appel lant under Section 302, I. P. C. and sentenc ing him to imprisonment for life. 2. The prosecution story, briefly stated, was that one Jagdish Rai, the Proprietor and Partner of Jagdish Rai & Company had taken some contract for construction of some building in Indian Institute of Technology, Kanpur. Gorey Lal, deceased (35) was working as a Supervisor, appellant Ram Chabiley as a mason, Yasin Ahmad (P. W. 2) as a mason and Ganga Prasad (P. W. 4) was a labourer, in the said Company, Shyam Lal (P. W. 3) was Chaukidar in the said Company. Ram Chabiley, appellant had left the work of said Company prior to 4-5 days of the occurrence. 3. On the morning of 26-10-1979 at about 8 a. m. Yasin Ahmad (P. W. 2), Ganga Prasad (P. W. 4), Gorey Lal alias Imtaj Ahmad, deceased came to the site of con struction in the I. I. T. premises. Gorey Lal went towards the office and Yasin Ahmad and Ganga Prasad after parking their cycles reached near construction site. They heard the cries of Gorey Lal that Ram Chabiley was beating him. They rushed to the spot and observed that Gorey Lal has fallen down and Ram Chabiley was causing injuries on him with an iron rod (Sariya ). On the intervention of the witnesses Gorey Lal fled away towards the Bus Stand on the western side. Mumtaj (P. W. 5), brother of Gorey Lai, deceased had come to I. I. T. Hostel to supply milk. He received information about the beating of his brother at about 8. 15 a. m. at the Bus Stop and he also rushed to the site of construc tion. Mumtaj (P. W. 5) Yasin Ahmad (P. W. 2) and other labourees took Gorey Lal on a charpai to I. I. T. Hospital, where first aid was given to him and he was referred to L. L. R. Hospital. The deceased was brought to L. L. R. Hospital in a jeep of Company at 9. Mumtaj (P. W. 5) Yasin Ahmad (P. W. 2) and other labourees took Gorey Lal on a charpai to I. I. T. Hospital, where first aid was given to him and he was referred to L. L. R. Hospital. The deceased was brought to L. L. R. Hospital in a jeep of Company at 9. 45 a. m. , where his injuries were examined by Doctor Sri Shyam Mohan Krishna (P. W. 6), who found fol lowing injuries on his person:- (1) Lacerated wound 2-1/2 cm x 1/2 cm x bone deep on right cheek, oblique on maxillary process. (2) Lacerated wound 8 cm x 1/2 cm x bone deep oblique in frontal region of scalp right side extending from the middle of right eye brow upwards near centre of frontal region. (3) Lacerated wound 2 cm x 1/2 cm x bone deep oblique right side of near the outer end of right eye brow. (4) Lacerated wound 8 cm x 1 cm x bone deep placed vertically on right side fronto parie tal region of scalp extending from outer end of right eyebrow towards scalp. Swollen and tenderence in the region with fresh and profuse bleeding. (5) Lacerated wound 2 CIK x 1/2 cm x bone deep placed outer to Inj. No. (4) on fronto parietal region of scalp. Oblique. (6) Lacerated wound 3 cm x 1/2 cm x bone deep placed on mastoid process of temporal bone on back of right ear. (7) Lacerated wound 2 cm x 1/2 cm x bone deep oblique placed on right side of parietal region of scalp about 7 cm above the root of right ear. (8) Lacerated wound 6 cm x 1 cm x bone deep placed transversally in centre of scalp 13 cm above the root of nose. (9) Lacerated wound 3 cm x 1/2 cm x bone deep placed in centre of scalp at right angle to injury No. (8 ). (10) Lacerated wound 7 cm x 1/2 cm x bone deep, obliquely placed on back occipitoparietal region of scalp in mid line, obli que, 13 cm above the right ear and 10 cm above the root of back of neck. (11) Right eye swollen, Blueness of upper lid. Eye could not be examined. (12) Lacerated wound 1 cm x 1/2 cm x bone deep placed on back of right hand in mid dle. G,c, very poor. (11) Right eye swollen, Blueness of upper lid. Eye could not be examined. (12) Lacerated wound 1 cm x 1/2 cm x bone deep placed on back of right hand in mid dle. G,c, very poor. Pulse 96 pmt. BP not readable, patient fully unconscious. Pupil dilated, sluggish reacting to light. Adv. X-ray of Skull, AP Lateral, Patient advised admission. Margin of all the wounds were irregular. All above injuries caused by plant object. Duration fresh. Nature of injuries be ascertained after X-ray. Nature of all injuries kept under ob servation. 4. Mumtaj (P. W. 5) came to police station Swaroop Nagar where he lodged report of the occurrence at 10 a. m. His report was written as non-cognizable report (Ext. Ka-4) under Sections 323,504 ,and 506, I. P. C. by Head Constable Deo Dutta Sharma (P. W. 7 ). 5. Gorey Lai, deceased was treated by Dr. Kashmir Singh (P. W. 7) under super vision of Professor R. S. Greywal, but he expired at 2 p. m. A memo regarding his death was sent to Police Station Swaroop Nagar. Since the case relates to PS. Kalyanpur, the papers relating to case were sent to said Police Station at 5. 20 p. m. on 26-10-1989 through Constable Sriniwas Yadava where a case was registered under Section 304,1. P. C. against the appellant at G. D. report (Ext. Ka-6) by Constable Sant Ram. The investigation of the case taken up by Sri Tula Ram Verma (P. W 9 ). The Investigating Officer reached in L. L. R. (Hallet) Hospital, where he con ducted inquest of the dead body of the deceased and prepared inquest report (Ext. Ka-7) and other relevant papers (Ext. Ka-8 to Ka-10 ). The dead body of the deceased was sent to mortuary for post-mor-tem. On 27-10-1979 the Investigating Of ficer interrogated Mumtaj (P. W 5), in spected the place of occurrence and prepared site plan (Ext. Ka-11 ). He also took into the possession the iron rod (Ext. 1), which was lying on the spot, blood stained Angauchha, blood stained and simple earth and prepared recovery memos (Ext. Ka-12 to Ka-14 ). Thereafter, he interrogated Yasin Ahmad (P. W 2), Shyam Lal (P. W 3), Ganga Prasad (P. W 4) and others. On the same day he apprehended Ram Chabiley at 6. 30 p. m. in front of G. T Tannery. Ka-12 to Ka-14 ). Thereafter, he interrogated Yasin Ahmad (P. W 2), Shyam Lal (P. W 3), Ganga Prasad (P. W 4) and others. On the same day he apprehended Ram Chabiley at 6. 30 p. m. in front of G. T Tannery. Autopsy on the dead body of Gorey Lai, deceased was conducted on 28-10-1979 at 11. 30 a. m. by Doctor J. C. Tripathi (P. W 1), who found following ante-mor-tem injuries on the person of deceased:- (1) Stitched wound 5 cm long 5 stitched present Rt. Side forehead from above middle of right eye brow obliquely upwards medially across the mid line. (2) Stitched wound 6 cm long with 6 stitches present on right side temple and right side head vertical just above outer end of right eye. (3) Stitched wound 3 cm long 3 stitches present 1 cm out side Injury No. 2 on right temple. (4) Stitched wound 2- 1/2 cm long two stitches present. Inj. placed out side to the inner part of Inj. No. 2. (5) Stitched wound 2 cm long two stitches present on right cheek 5 cm in front of right ear. (6) Stitched wound 1 cm long one stitch present on right side head 6 cm above ear. (7) Curved stitched wound 6 cm long six stitches present 1 cm above and in front of injury No. 6 right side head. (8) Stitched wound 5 cm long 4 stitches present on right side top of head 13 cm above and behind right ear. (9) Stitched wound 3 cm long one stitch present just behind the middle region of right ear. (10) Contusion 5 cm x 3 cm around right eye. (11) Incised wound 3 cm x 1 cm x muscle deep on back of right head 1 cm above base. (12) One surgical wound 1 cm long with two stitches with cannula at the inner part of right ankle. (13) One surgical wound 1- 1/2 cm long one stitch present on inner part of left ankle. 6. On internal examination, there were multiple fractures on both frontal and parietal bones as well as occipital bone. Membrances were congested. Mul tiple clots present under the scalp and on the brain surface. Base of skull fractured on the left and middle side. According to the Doctor death occurred due to coma as a result of injuries noted above. 7. On internal examination, there were multiple fractures on both frontal and parietal bones as well as occipital bone. Membrances were congested. Mul tiple clots present under the scalp and on the brain surface. Base of skull fractured on the left and middle side. According to the Doctor death occurred due to coma as a result of injuries noted above. 7. On 11-11-1979 the Investigating Officer interrogated other witnesses and submitted charge sheet against the appel lant under Section 304, I. P. C. The appel lant pleaded not guilty and contended that Gorey Lai, deceased had left Rs. 5. 000/-with Jagdish Rai, Contractor. He had also left Rs. 10,000/- with the said Contractor. When he and Gorey Lal demanded their money from Jagdish Rai, Thekedar, Ashok Babu, S/o Jagdish caused injuries on Gorey Lal and Jagdish Rai falsely impli cated him to save his son. 8. The prosecution in support of its case examined Doctor J. C. Tripathi (PW 1), Yasin Ahmad (RW 2), Shyam Lal (P. W 3), Ganga Prasad (P. W 4), Mumtaj Ahmad (P. W 5), Dr. Shyam Mohan Krishna (P. W 6), Dr. Kashmir Singh (R W 7), Head Constable Deo Dutta Sharma (R W 8) and Tula Ram Verma (RW 9), Yasin Ahmad (P. W 2), Shyam Lal (P. W 3) and Ganga Prasad (RW 4) were the witnesses of fact while the evidence of remaining witnesses was formal in nature. 9. The learned Additional Sessions Judge on considering the evidence of the prosecution held that prosecution has suc cessfully proved the guilt of appellant Ram Chabiley for the offence punishable under Section 302, I. P. C. With these findings he convicted and sentenced him as men tioned above. 10. We have heard Sri Apul Mishra, learned Amicus Curiae for the appellant and learned A. G. A. for the respondent and have gone through the evidence on record. 11. The injuries on the person of Gorey Lai, deceased and his death due to above injuries are not disputed. The appel lant himself admitted in his statement under Section 313, Cr, P. C. that injuries were caused on Gorey Lai, deceased not by him, but by Ashok Babu, S/o Jagdish Rai, Contractor/proprietor of M/s. Jagdish Rai and Company. The evidence of Doctor Shyam Mohan Krishna (P. W. 6) and Dr. The appel lant himself admitted in his statement under Section 313, Cr, P. C. that injuries were caused on Gorey Lai, deceased not by him, but by Ashok Babu, S/o Jagdish Rai, Contractor/proprietor of M/s. Jagdish Rai and Company. The evidence of Doctor Shyam Mohan Krishna (P. W. 6) and Dr. J. C. Tripathi (P. W. 1) proved the presence of injuries on the person of the deceased and his death due to above injuries. 12. According to the prosecution, the appellant caused injuries on Gorey Lai, deceased on 26-10-1979 at about 8 a. m. in side I. I. T. premises near the site of con struction. The contention of appellant was that the injuries on the person of the deceased were caused by Ashok Babu, S/o Jagdish Rai, Contractor and Proprietor of Jagdish Rai and Company. The prosecu tion relied on ocular testimony of Yasin Ahmad (P. W. 2), Shyam Lal (P. W 3) and Ganga Prasad (P. W. 4 ). We have carefully gone through the evidence of the above ocular witnesses. Yasin Ahmad (P. W. 2) was admittedly working as mason in Jag dish Rai and Company and according to his evidence on the morning of occurrence at about 8 a. m. he came to work at the site of the construction and when he reached near the building under construction, he heard the shrieks of Gorey Lai, who was crying that Ram Chabiley was killing him. He rushed to the spot and observed that Gorey Lal had fallen down and Ram Chabiley was inflicting Sariya blows on him. Shyam Lal (P. W. 3) was Chaukidar in Jagdish Rai and Company. He stated that on the morning of occurrence at about 8 a. m. he was cleaning office of Contractor inside I. I. T. premises and observed that at a distance of 4 paces from the said office Ram Chabiley, appellant inflicted iron rod blow on Gorey Lai, due to which he fell down and again caused injuries on him with iron rod. He further stated that Gorey Lai, appellant was Munshi in Jagdish Rai and Company and Ram Chabiley was also working as mason in the said Company. He further stated that Gorey Lai, appellant was Munshi in Jagdish Rai and Company and Ram Chabiley was also working as mason in the said Company. Ganga Prasad (P. W. 4), who was also work ing in Jagdish Rai and Company and was engaged in construction work of buildings in I. I. T premises stated that on the morn ing of occurrence at about 8 a. m. he came to his work and heard alarm of Shyam Lai, Chaukidar and rushed to the spot. Yasin Ahmad (P. W. 2) also came there. He ob served that Ram Chabiley was causing Sariya blows on Gorey Lai, deceased. On the intervention of the witnesses, the ap pellant ran away leaving the iron rod on the spot. Mumtaj (P. W. 5), brother of Gorey Lai, deceased stated that as usual on the day of occurrence he had come to supply milk in the I. I. T. Hostels. While he was at Bus Stand near I. I. T. premises he got information about the injury on his brother. He went to the spot and with the help of other witnesses shifted him to I. I. T. Hospital, from where the deceased was referred to the L. L. R. Hospital. That he lodged report of the occurrence at P. S. Swaroop Nagar. The presence of the wit ness is corroborated by the evidence of Head Constable Deo Dutta Sharma. The above ocular witnesses have categorically denied the contention of the appellant that injuries on the person of deceased were caused by Ashok Babu. There is noth ing in the cross-examination of the above witnesses to disbelieve them. They were independent witnesses having no concern with the deceased or the appellant. No doubt, they were workers in Jagdish Rai and company, but the deceased as well as the appellant were also workers and no interestedness with deceased had been shown. In these circumstances, their tes timony was rightly believed and it was proved that appellant Ram Chabiley caused injuries on the person of Gorey Lai, deceased with iron rod, which resulted into his death. 13. The learned Amicus Curiae con tended that no motive was suggested by the prosecution and the occurrence took place suddenly. In these circumstances, their tes timony was rightly believed and it was proved that appellant Ram Chabiley caused injuries on the person of Gorey Lai, deceased with iron rod, which resulted into his death. 13. The learned Amicus Curiae con tended that no motive was suggested by the prosecution and the occurrence took place suddenly. The appellant had no intention to commit murder of the deceased and it appears that out of sudden provocation he caused injuries and therefore, his case falls under Section 304, I. P. C. and not under Section 302,1. P. C. as it is covered by Excep tion 4 to Section 300, I. P. C. He also placed reliance on Supreme Court case law Surinder Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094 . It was held in the said case that to invoke Exception 4 to Section 300 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 taten any undue ad vantage or acted in ? a j. el manner. The cause of 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 moment picks up a weapon which is handy and causes injuries, one of which prove fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. Thus, in case of quar rel between the accused regarding posses sion of premises it was reasonable to infer from the fact that the deceased must have intervened on the side of his brother and in the course of scuffle he received injuries, one of which proved fatal, the accused would be entitled to the benefit of the Exception 4 to Section 300. Merely be cause three injuries were caused to the deceased it could not be said that he had acted in a cruel and unusual manner. Merely be cause three injuries were caused to the deceased it could not be said that he had acted in a cruel and unusual manner. Under such circumstances, the accused would be convicted under Section 304, Part I,i. P. C. 14. In the instant case, prosecution has not led evidence regarding origin and inception of the occurrence. Yasin Ahmad (P. W 2), Shyam Lal (P. W. 3) and Ganga Prasad (P. W. 4) rushed to the spot when they heard shrieks of Gorey Lai, deceased and they observed that Gorey Lal had fal len down and the appellant was causing sariya blows on him. On which point, the quarrel started had not been explained. Admittedly, Gorey Lai, deceased was working as Munshi in Jagdish Rai and Company and appellant had worked as mason in the said Company. The pos sibility, that some quarrel had taken place between the deceased and appellant on account of wages cannot be easily ruled out and therefore, it appears that the appellant started causing sariya blows on the deceased out of sudden provocation and anger. No doubt, he had caused as many as 12 injuries, but number of injuries are not very much material as when a person starts acting under anger generally he has no control on him. As mentioned above there is total absence of premeditation and preplanning. In these circumstances, we are of the view that the case of the appellant falls under Exception 4 to Section 300, I. P. C. and therefore, the appellant be convicted under Section 304, Part I, I. P. C. instead of Section 302, I. P. C. 15. Regarding quantum of sentence, the appellant is in jail since 26-7-1982. He had undergone imprisonment for more than 19 years and therefore, we are of view that the appellant be sentenced to period already undergone. Thus, the appeal partly succeeds. 16. The appeal is partly allowed. The conviction of the appellant is converted under Section 304, Part I, I. P. C. instead of 302, I. P. C. and he is sentenced to period already undergone. 17. Let a copy of this order be sent to C. M. M. Kanpur to be forwarded to the Superintendent of Jail where the appel lant is at present confined for necessary action. Sri Apul Mishra, Amicus Curiae will get his fee as permissible under rules. Appeal partly allowed. .