JUDGMENT 1. :- The appellants were indicted before the learned Judge Special Court (Communal Riots) Jaipur in Sessions Case No.19/94 for having committed murder of Intjar. The learned Judge vide judgment dated March 24, 1998 convicted and sentenced the appellants as under : Abdul Haq @ Abdulla under Section 302 Indian Penal Code Life imprisonment with fine of Rs. 5000/- and in default of payment of fine to further undergo sentence of 6 months S.I. Smt. Jayeda Under section 302/109 Indian Penal Code Life imprisonment with fine of Rs. 5000/- and in default of payment of fine to further undergo 6 months S.I. 2. Put briefly the prosecution case is that Jayeda had illicit relationship with Abdul Haq @ Abulla. Abdulla used to visit the house of Jayeda in the odd hours of night. The neighbours raised objections to it. On September 20, 1993 around 5.00 PM Jayeda threatened her neighbours and hurled abuses at them and threatened them of dire consequences. Thereafter at about 8.30 PM when Abdulla visited Jayeda, she instigated Abdulla and Abdulla inflicted knife blow on the chest of Intzar. While Intzar was taken to the hospital, he died. A written report was submitted by Maqbool @ Tinnu Khan with the Police Station Ramganj Jaipur at 9.45 PM and on the basis of said report investigation commenced and after necessary formalities charge sheet was filed. In due course the case came up for trial before the Judge Special Court (Communal Riots), Jaipur. Charges under Section 302 Indian Penal Code and 302/109 Indian Penal Code were framed respectively against Abdul Haq @ Abdulla and Jayeda who denied the charges and claimed trial. The prosecution in support of its case examined as many as 22 witnesses. In the explanation under Section 313 Criminal Procedure Code, appellants Abdulla and Jayeda claimed innocence. Five defence witnesses were examined. After hearing final submissions, learned trial Judge convicted and sentenced the appellants as indicated hereinabove. 3. Learned counsel for the appellants canvassed that no case under Section 302 and 302/109 Indian Penal Code is made out against the appellants. Appellant Abdul Haq got provoked when he saw misbehaviour of neighbours of Jayeda with her and in the heat of passion inflicted single blow on the person of Intzar that proved fatal. 3. Learned counsel for the appellants canvassed that no case under Section 302 and 302/109 Indian Penal Code is made out against the appellants. Appellant Abdul Haq got provoked when he saw misbehaviour of neighbours of Jayeda with her and in the heat of passion inflicted single blow on the person of Intzar that proved fatal. Thus in view of Exception 1 to Section 300 Indian Penal Code no case under Section 302 Indian Penal Code is made out. The incident occurred all of sudden and guilt under Section 302/109 Indian Penal Code is also not established against appellant Jayeda. We were taken through the statements of witnesses and various authorities. 4. Per contra, learned Public Prosecutor on the other hand made attempt to justify the findings of the trial judge and drew our attention to the nature of injury sustained by the deceased. 5. We have given anxious considerations to the rival submissions and scanned the material on record. 6. Turning to the prosecution evidence we find that the informant Maqbool (PW.1) in his deposition stated that Jayeda who married to Latif, was a woman of easy virtue, therefore, Latif deserted her. Jayeda thereafter married to one Saleem and after his death she started residing in the house of her father Babu Khan. There she developed illicit relationship with Abdul Haq who used to visit her frequently. Maqbool and other neighbours objected the visit of Abdul Haq from the passage through the house of Maqbool and asked Jayeda to call Abdulla from another way but she declined. On September 20, 1993 around 5.00 PM Jayeda started abusing Maqbool and entered into quarrel. Thereafter around 8.30 PM while Maqbool along his son Intzar and other neighbours were standing outside the house of Maqbool, Abdulla came out of the house of Babu Khan, and inflicted injury with knife on the person of Intzar, who was immediately removed to hospital where he was declared dead. 7. Ismail Khan (PW.2), Immamuddin (PW.3) and Jafar (PW.4) almost repeated the version narrated by informant Maqbool. Dr. B.L. Bhatia (PW.22) performed autopsy on the dead body of Intzar and as per post-mortem report (Ex.P-24) Intzar sustained following ante mortem injuries : "(1) Stab wound 3, 1/4 x 1 cm x depth, shaped, placed obliquely in between IV to V I.C.S. near sternum (in between costal cartilages), covered with thick blood. Dr. B.L. Bhatia (PW.22) performed autopsy on the dead body of Intzar and as per post-mortem report (Ex.P-24) Intzar sustained following ante mortem injuries : "(1) Stab wound 3, 1/4 x 1 cm x depth, shaped, placed obliquely in between IV to V I.C.S. near sternum (in between costal cartilages), covered with thick blood. Dissection shows its trick inwards, medially and posteriorly, cutting through, chest wall, pleura, pericondium, Rt. border of Rt. verticla, 10 meter verticular septum and then into left ventricle and finally piercing again pericandium and piercing lower love of Lt. lung on its medial surface and entering into it upto 4 cm length, all pierced structures and soaked up with blood which is thick & dark. Hear is empty. Windows (and wounds) of pericandium are 3 x 1, 1/4cm in size, eluplical in shape. There is a clotted mass of blood on mediastinal surface of Lt.lung 6 x 4, 1/2 cm. (2) Abrasion - shaped, 8 x 1cm on Rt. deltoid region, oblique. (3) Abrasion 3 x 1/4 cm placed vertically on Rt. side of bridge of nose. (4) Abrasion 1, 3/4 x 1cm, irregular on outer part of Lt. wrist. (5) Four abrasions (1/2 x 3/4 cm to 1/2 x 1/4 cm) on dorsum of Lt. hand." "The cause of his death is haemorrhagic shock due to injury to heart and left lung, which was sufficient to cause death. 8. Learned trial Judge in the impugned judgment observed that Jayeda instigated Abdul Haq to kill Intzar, thereupon Abdul Haq inflicted knife injury on the heart of Intzar and killed him. Thus Jayeda was found guilty Under Section 302/149 and Abdul Haq under Section 302 Indian Penal Code. 9. It is trite that abetment is an instigation to a person to do an act in a certain way or aid some other person in doing an act which is an offence. Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence. To constitute abetment person must instigate any other person to do a particular thing or he must engage himself with one or more persons in a conspiracy of doing that thing or he must intentionally aid by any act or illegally omit the doing of that thing. To constitute abetment person must instigate any other person to do a particular thing or he must engage himself with one or more persons in a conspiracy of doing that thing or he must intentionally aid by any act or illegally omit the doing of that thing. The definition of abetment under Section 107 of the Indian Penal Code portrays that to constitute abetment, the abettor must be shown to have intentionally aided the commission of the crime. Three things are essential to complete abetment as crime : (i) There must be an abettor; (ii) He must abet; and (iii) Abetment must be an offence. An abetment means some active suggestion or support to the commission of the offence. The word "instigate" literally means to goad, urge forward, provoke, incite or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means, or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Direct evidence of any instigation or aid is not necessary. It is a matter, which can be deduced from the circumstances. Four things are considered in determining the criminality of the abettor. What act he had abetted and with what intention, and what act was committed and with what intention. If there was identity of intention of the abettor and the actor and the act was committed as it was abetted, then the liability of the abettor and the actor is equal. 10. We do not see any active suggestion or support to the commission of offence on the part of Jayeda. The prosecution is only able to establish that at 5 PM Jayeda hurled abuses at the informant Maqbool but there is nothing on record that could suggest that Jayeda had abetted Abdulla to kill Intzar. We are therefore of the view that no case under Section 302/109 Indian Penal Code is made out against Jayeda. 11. So far as the argument of learned counsel that Abdul Haq got provoked after seeing the unusual behaviour of neighbours of Jayeda with her and inflicted single blow, we find from the evidence of Maqbool (PW.1), Ismail Khan (PW.2), Imamuddin (PW.3) and Jafar (PW.4) that when at 8.30 PM Abdul Haq came out of the house of Jayeda, Intzar did not give provocation to him. He was not deprived of the power of self control. Intzar was quietly standing and Abdul Haq pierced knife on his heart and fled away. In our considered view this is not a case where Exception 1 to Section 300 Indian Penal Code is attracted. The law is now well settled that exception 1 to Section 300 Indian Penal Code can apply only when the accused is shown to have been deprived of the power of self control by grave and sudden provocation which is caused by the person whose death is caused. The test of grave and sudden provocation is whether a reasonable man belonging to the same lass of society as the accused, placed in the situation in which he was placed would be so provoked as to lose his self control and the provocation must be such as would upset not merely hot tempered or a highly sensitive person but one of ordinary calmness. The scope of the doctrine of provocation was stated by Viscount Simon in Mancini v. Director of Public Prosecutions (1942) A.C. 1 , thus : "It is not all provocation that will reduce the crime of murder to manslaughter. Provocation to have that result, must be such as temporarily deprive the person provoked of the power of self control as the result of which he commits the unlawful act which cause death... The test to be applied is that of the effect of the provocation on a reasonable man, as was laid down by the court of Criminal Appeal in Rex v. Lesbini (1914) 3 K.R. 1116 , so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the test, it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dragger. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." 12. In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter." 12. According to learned counsel the act of Abdul Haq is at the most culpable homicide not amounting to murder punishable under Section 304 Part II Indian Penal Code as Abdul Haq inflicted only one blow and did not repeat it. We have pondered over this submission. While dealing with a case of single injury, the Apex Court in Jagrup Singh v. State of Haryana (1981 SCC (Cr.) 768) indicated that there is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304 Part II W. The whole theory depends upon the intention to cause death and the case may be covered by either clause Firstly or clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. 13. Placing reliance upon the ratio indicated in Virsa Singh Vs. State of Punjab ( 1958 SCR 1495 ) their Lordships of the Supreme Court in Abdul Waheed Khan v. State of A.P. (2002) 7 SCC 175 propounded as under : "These observation of Vivian Bose J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause 'Thirdly' is now ingrained in our legal system and has become part of the rule of law.... according to the rule laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death, the offence would be murder. Illustration (C) appended to section 300 clearly brings out this point." 14. Undeniably in the case on hand appellant Abdul Haq inflicted only one injury with knife on the person of deceased. The part of the body selected for causing injury was left side of the chest. Illustration (C) appended to section 300 clearly brings out this point." 14. Undeniably in the case on hand appellant Abdul Haq inflicted only one injury with knife on the person of deceased. The part of the body selected for causing injury was left side of the chest. A look at the post mortem report demonstrates that there was stab wound of the size of 314 x 1cm x depth, shaped, placed obliquely in between IV to V I.C.S. near sternum (in between costal cartilages), covered with thick blood. Dissection shows its trick inwards, medially and posteriorly, cutting through, chest wall, pleura, pericondium, Rt. border of Rt. vertically 10 meter vertically septum and then into left ventricle and finally piercing again pericandium and piercing lower love of Lt. lung on its medial surface and entering into it upto 4cm length, all pierced structures and soaked up with blood which is thick & dark. Hear is empty. Windows (and wounds) of pericandium are 3 x it cm in size, eluplical in shape. There is a dotted mass of blood on mediastinal surface of Lt. lung 6 x 4 1/2cm. Dr. B.L. Bhatia (PW.22) who performed autopsy on the dead body deposed that the cause of death was haemorrhagic shock resulting from the injury to heart and left lung which was sufficient to cause death. It can therefore reasonably be inferred that solitary knife blow was inflicted by appellant Abdul Haq on the left side of chest of the deceased with the intention to kill the deceased. We have gathered the nature of intention of the appellant Abdul Haq from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death. We thus find no merit in the submissions of learned counsel for the appellant and hold that the trial Judge was right in convicting and sentencing the appellant Abdul Haq for the offence under Section, 302 Indian Penal Code as he committed the offence of murder and not culpable homicide not amounting to murder. 15. For these reasons we allow the appeal of appellant Jayeda and set aside her conviction under Section 302/109 Indian Penal Code. Jayeda is on bail, she need not surrender and her bail bonds stand discharged. 15. For these reasons we allow the appeal of appellant Jayeda and set aside her conviction under Section 302/109 Indian Penal Code. Jayeda is on bail, she need not surrender and her bail bonds stand discharged. Appeal of appellant Abdul Haq Abdulla stands dismissed and his conviction and sentence under Section 302 Indian Penal Code are maintained.Order accordingly. *******