JUDGMENT (Per N. Dhinakar, J.) The appellants are accused 1 and 2 respectively in Sessions Case No. 64 of 1988 on the file of the First Additional Sessions Judge, Tirunelveli. Under charge No.1 the first appellant, who hereinafter will be referred to as the first accused (A-1), was charged for an offence of murder on an allegation that at 2.30 a.m. on 26-5-1987, he stabbed Fazal Hasuf, the deceased in the case, with a knife, M.O.I., as a result of which the said Fazal Hasuf died and the second charge was framed against the second appellant, who will be hereinafter referred to as the second accused (A-2), under Section 302 r/w 109 IPC with an allegation that he abetted A-1 to stab the deceased and that A-1 stabbed the deceased Fazal Hasuf on account of the said instigation. The learned Sessions Judge, on the evidence adduced, convicted and sentenced each of the accused to suffer imprisonment for life. 2. The case of the prosecution is this: P.W. 1 is the father of the deceased and P.W. 10 is the elder brother of the deceased. They were residents of Jayalani Street. Tuticorin. P.W. 1 was working in Madura Coats and retired and the deceased was working as a Loadman of mangoes. On 25-5-1987, P.W. 8 accompanied by 8 girls, who are known to P.W. 1 while he was at Madurai went to the house of P.W. 1 to stay for the night. They had gone there with a view to obtain certificates from a school. The girls were desirous of going to a movie and the deceased accompanied them. After sending the girls and the deceased, P.W. 1 went to his elder brother's house to take his bed. In the meantime while the deceased was proceeding to a theatre with P.W. 8 and other girls, he met A-1 and A-2. A-1 and A-2 asked the deceased to send two of the girls with them. The accused were taken to task by the deceased. Thereafter, they went to a theatre, witnessed a movie and returned home. The deceased after leaving the girls in his house, proceeded to the tea-stall run by P.W. 9 to take tea. On the way, he met A-1 and A-2 as well as his friends P.Ws. 3 and 4. All of them went to the tea-stall and then were returning. Thereafter, they went to a theatre, witnessed a movie and returned home. The deceased after leaving the girls in his house, proceeded to the tea-stall run by P.W. 9 to take tea. On the way, he met A-1 and A-2 as well as his friends P.Ws. 3 and 4. All of them went to the tea-stall and then were returning. P.W. 4 was proceeding to a mosque for prayer and saw the accused coming from west. The deceased was following P.W. 4. The accused asked the deceased to stop and were seen talking with the deceased. When P.W. 4 reached a junction of South Street and New Street, he heard that derogatory remarks were made against the sisters of the accused. The deceased was also seen slapping A-2. A quarrel ensured between the parties resulting in a scuffle. At that time, A-2 held the hands of the deceased and asked A-1 to stab him. A-2 took a knife. M.O.I. from his waist and stabbed the deceased on the left flank. P.W. 4 was threatened not to divulge the incident and the accused thereafter ran away from the scene. P.W. 10, the elder brother of the deceased, was returning after his prayer and heard that his brother had been stabbed to death. P.W. 10 thereafter went and informed P.W. 1 that his brother had been stabbed to death. P.W.1 went to the scene of occurrence and found his son lying with a stab injury. Thereafter, he proceeded to Tuticorin Central Police Station, where he gave a complaint, Ex. P-1 to P.W. 14, the Head Constable, who, on the basis of the said complaint, registered a case in Crime No. 473 of 1987 under Section 302 IPC by preparing express reports Ex. P-14 is a copy of the printed First Information Report. Express reports were despatched to the Higher officials and to the Court. 3. Investigation was taken up by P.W. 16, the Circle Inspector of Police, Tuticorin Central Police Station, who reached the scene of occurrence by 7.45 a.m. where he prepared an observation mahazar, Ex. P-8. He also drew a rough sketch, Ex. P-16. Inquest over the dead body of Fazal Hasuf was conducted between 6.45 a.m. and 11.30 a.m. Ex. P-17 is the inquest report. P.W. 16 also seized M.Os. 2, 3 and 4 under a mahazar Ex. P-9 attested by P.W. 11. P-8. He also drew a rough sketch, Ex. P-16. Inquest over the dead body of Fazal Hasuf was conducted between 6.45 a.m. and 11.30 a.m. Ex. P-17 is the inquest report. P.W. 16 also seized M.Os. 2, 3 and 4 under a mahazar Ex. P-9 attested by P.W. 11. The dead body was sent with a requisition for conducting autopsy. 4. On receipt of the requisition and the dead body, P.W. 6 the Civil Assistant Surgeon attached to Government Hospital. Tuticorin conducted autopsy on the body of Fazal Hasuf at 2.15 p.m. on 26-5-1989 and found an incised wound measuring 4 x 2 x 6 cm. on the left side of the chest about 8" below the left axillary fold. He issued Ex. P-3, the post-mortem certificate, with his opinion that the deceased would appear to have died of shock and haemorrhage as a result of the injury sustained by him. 5. The investigation in the case continued and P.W. 16 searched for the accused. He also formed a special team to apprehend them. At about 2.30 a.m. on 30-5-1987 on an information received, P.W. 16 went to a Pillaiyar temple at Turicorin and arrested both the accused in the presence of P.W. 12. A-1 when questioned, gave a statement and the admissible portion of the same is Ex. P-10. Similarly A-2 also gave a statement and the admissible portion of the same is Ex. P-11. In pursuance of the statement given by him, A-1 took the police party to a mango fruit shop from where he took out and produced M.O.I., the knife, which was seized under a mahazar Ex. P-12 attested by P.W. 12 and another. A-2 also took the police party to his house and from there he took out and produced M.O. 5 a shirt, which was seized under a mahazar Ex. P-13 attested by P.W. 12 and another. The material objects and the accused were brought to the police station and thereafter the accused were sent for remand. He questioned P.Ws. 6 and 12 on that day. The material objects seized in the case were sent to the Court with a request to forward them for analysis. 6. P-13 attested by P.W. 12 and another. The material objects and the accused were brought to the police station and thereafter the accused were sent for remand. He questioned P.Ws. 6 and 12 on that day. The material objects seized in the case were sent to the Court with a request to forward them for analysis. 6. Further investigation was taken up by P.W. 17 who, after verifying the investigation conducted by his predecessor-in-office questioned some other witnesses in the case and on his transfer on 21-7-1987, the investigation was taken up by P.W. 18, who verified the investigation conducted by P.Ws. 16 and 17 and laid a final report against the accused on 19-10-1987. 7. When questioned under Section 313 Cr.P.C. on the incriminating circumstances, the accused denied their complicity. 8. The case of the prosecution is that Fazal Hasuf was murdered and that he was murdered at 2.30 a.m. on 26-5-1987 by A-1 stabbing him while A-2 was holding him. According to the prosecution the occurrence was witnessed by P.Ws. 4 and 5. Though P.Ws. 4 and 5 were examined as eyewitnesses, P.W. 5 turned hostile. P.W. 4 spoke about the incident and he has in his evidence, stated that he, the deceased and the accused returned from a tea-stall and were proceeding to a mosque for prayer. According to him, he was followed by the deceased and the accused and the distance between them was 20 feet. He has further deposed that when he reached a junction he heard shouts emanating and when he turned around, he saw the accused and the deceased quarrelling and grappling with each other. He further deposed that he saw the deceased slapping A-2 which ultimately resulted in a scuffle between the parties and A-2 asked A-1 to stab and A-1 stabbed him. 9. The learned Counsel for the appellants/accused contends that the evidence of P.W. 4 cannot be accepted since he was not examined at the time of inquest, but only was examined thereafter. According to the learned Counsel, since the statement given by P.W. 4 reached the Court four days after it was recorded, his evidence has to be rejected. We are unable to accept the said contention. Merely because the witness was not examined at the time of inquest, his evidence need not be rejected. According to the learned Counsel, since the statement given by P.W. 4 reached the Court four days after it was recorded, his evidence has to be rejected. We are unable to accept the said contention. Merely because the witness was not examined at the time of inquest, his evidence need not be rejected. A perusal of the evidence of P. W. 4 shows that he has no reason to come out with a false version against the accused for us to disbelieve his evidence. On the contrary, the evidence of P.W. 4 shows that he is not only the friend of the deceased, but also the friend of the accused. We, therefore, accept his evidence. 10. The second limb of the argument of the learned Counsel for the appellants/accused is that even if the entire facts of the case are taken to be true. A-1 is entitled to the benefit of Exception 4 to Section 300 IPC since A-1 stabbed the deceased without any premeditation upon a sudden quarrel in the heat of passion, in the background of the admission of P.W. 4 in cross-examination. P.W. 4 has, in his cross-examination admitted that before the occurrence took place there was a quarrel between the parties for about 15 minutes and that each tore the shirt of the other. He has further admitted that both the parties rolled on the ground for about 5 minutes. This evidence of P.W. 4 indicates that just prior to the incident, a quarrel ensured between the parties and on account of some provocative word given by the accused, the deceased slapped A-2 resulting in a quarrel between the parties and in the said quarrel, the deceased was stabbed by A-1. 11. In Surinder Kumar vs. Union Territory, Chandigarh AIR 1989 SC 1094 the Supreme Court held that to invoke Exception 4 to Section 300 IPC. 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. 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 Supreme Court further held that the cause of quarrel is not relevant nor is it relevant who offered the provocation or started the assault and 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. 12. When we apply the above principle as enunciated by the Apex Court, we feel that A-1 is entitled to the benefit of Exception 4 to Section 300 IPC and hence, his conviction and sentence under Section 302 IPC cannot be maintained. We, therefore, acquit him under Section 302 IPC and instead he is convicted under Section 304 Part-I IPC for the said conviction. He is directed to suffer rigorous imprisonment for a period of 7 (seven) years. 13. Since it had come out in evidence that the occurrence took place in a quarrel and that A-1 and the deceased were seen rolling on the ground for about 5 minutes, it cannot be stated that A-2 actually abetted A-1 to stab the deceased by holding his hands. As the deceased was rolling on the ground with A-1, it is impossible for us to believe that part of the evidence of P.W. 4 when he stated that A-2 held the deceased since there is no question of holding the deceased by A-2 when the parties were graping with each other and rolling on the ground. We, therefore given the benefit of doubt to A-2 and acquit him of the charge framed under Section 302 r /w 109 IPC. 14. In the result, the appeal is partly allowed with the above modifications in conviction and sentence. 15. It is reported that both the accused are on bail. Hence the learned Sessions Judge shall take steps to commit A-1 to jail to undergo the remaining period of sentence and the bail bonds, if any, executed by A-2 shall stand cancelled.