C. L. PANGARKAR, J.:- These two appeals arise out of the same judgment delivered in Sessions Trial No.8 of 2002. They can, therefore, be finally disposed of by a common judgment. The accused No.1 has preferred Criminal Appeal No.483 of 2003 while accused No.2 preferred Criminal Appeal No.480 of 2003. 2. The two appellants were convicted by the 2nd Adhoc Additional Sessions Judge, Amravati for having committed an offence under Section 302 read with Section 34 of Indian Penal Code. They were sentenced to undergo imprisonment for life. 3. The facts shorn of details are as under: Complaint Nilu was married to deceased Chandu. Since their daughter was not keeping well they came to reside with the father of Nilu at Amravati w.e.f. 30.10.2001. On 02.11.2001 while Nirmala and her friends Sharda and Sunita were standing in front of the house they found both accused and Chandu, the deceased standing at a distance of about 15-20 ft. from their house. The accused No.1 and deceased Chandu were talking to each other. Accused No.1 was abusing deceased Chandu. Accused No.1 Sahebrao asked accused No.2 Jiwan to bring the sword. Accused No.2 Jiwan brought two swords and handed over one of them to accused No.1 Sahebrao. Accused No.1 Sahebrao then gave a blow on the head of deceased Chandu and another blow was given on the waist. Chandu fell down on the ground. His wife and sister came on the spot. They with the help of others carried deceased Chandu to the hospital. Chandu died of the injuries sustained during attack. His wife Nilu lodged report Ex.56 with the police. The offence was registered and the accused Nos.1 and 2 were arrested by the police. Accused No.1 during the course of the investigation discovered the weapon of the offence, i.e. sword so too the accused No.2. Police had also seized clothes on the person of accused No.1 Sahebrao. They recorded the statements of the witnesses and the seized articles were sent to the Chemical Analyser. 4. After completion of the investigation a charge sheet came to be filed against the accused persons. The learned Sessions Judge after framing the charge recorded the evidence of the witnesses and upon consideration of the evidence found both the accused guilty of offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to imprisonment for life. 5. The learned Sessions Judge after framing the charge recorded the evidence of the witnesses and upon consideration of the evidence found both the accused guilty of offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to imprisonment for life. 5. We have heard the learned counsel for the parties. The prosecution in order to bring home guilt to the accused has examined as many as 11 witnesses. P.Ws.1,2,3 i.e. Nirmala, Machhindra and Sharda have stated that the deceased was assaulted with a sword and he had sustained injuries on the head. P.W.9 Dr. Sanjay Kherde deposed that he had carried out postmortem on the dead body of Chandu on 03.11.2001. He states that he found following injuries on the person of the deceased and the postmortem note is at Ex.65 : 1. Incised wound over left temporal region of skull, 1". above the left ear, transverse in direction, size 16 cm. X 1 cm. X 3 cm. Brain tissue came out. 2. Incised wound over left temporal region, just below the injury No.1 transverse in direction, cutting ear pinna, transversely, size 8 cm. x. Y2 cm. x muscle deep. He states that both injuries were sufficient in the ordinary course of nature to cause death. There is a fracture of skull. Although it is elicited from P.W.9 Dr. Kherde, that, injury such as No.1 could be caused due to fall on the hard and blunt object, such kind of suggestion is not at all given to any of the eye witnesses. On the other hand it is suggested on behalf of accused No.1 to P.W.2 Machhindra that one Sandeep Thorat gave a blow of sword to the deceased. This suggestion and testimony of P.Ws.1, 2, 3 in fact clearly goes to show that due to the use of violence the deceased sustained injuries of which he died. The death is, therefore, clearly homicidal. 6. There are as many as three eye witnesses. They are P.W.1 Nirmala, P.W.2 Machhindra and P.W.3 Sharda. It is deposed by P.W.1 Nirmala that she along with Sharda and Sunita was standing in front of her house. She states that Chandu and both the accused were standing at a distance of 15-20 ft. away and they were talking to each other. They are P.W.1 Nirmala, P.W.2 Machhindra and P.W.3 Sharda. It is deposed by P.W.1 Nirmala that she along with Sharda and Sunita was standing in front of her house. She states that Chandu and both the accused were standing at a distance of 15-20 ft. away and they were talking to each other. She states further that accused No.1 Sahebrao was abusing Chandu and then accused No.1 asked accused No.2 to bring the sword. She goes on to state that accused No.2 brought two swords and gave one to accused No.1 and retained one with him and then accused No.1 gave a blow with the sword on the head and waist of Chandu. She states that then sister of deceased Chandu came there and they carried Chandu to the hospital. The witness has been cross-examined at considerable length on behalf of accused Nos.1 and 2. On behalf of accused No.2 it is tried to be elicited that deceased Chandu was prosecuted under Section 302 of Indian Penal Code. The details have not been elicited and the witness denies to have knowledge that he was so prosecuted. The witness also denies the suggestion that she did not witness the incident and that accused No.2 did not bring the swords. Similarly on behalf of accused No.1 it is elicited that people of locality are afraid of accused No.1 and he had created a terror in the locality. These questions were perhaps put to the witness to show that people in the locality wanted accused No, 1 to be apprehended and put behind bar, but this can be used the other way also. Looking to the nature and character of the accused No.1 this suggestion in fact corroborates the theory of the prosecution that the accused No.1 Sahebrao assaulted the deceased. There is nothing in the evidence which would render the testimony of P.W.1 to be untrustworthy. 7. P.W.2 Machhindra and P.W.3 Sharda have both corroborated the version of P.W.1 Nirmala that accused No.1 asked accused No.2 to bring the swords and he brought them and accused No.2 handed over one sword to the accused No.1 and retained the other with him. They also corroborate that accused No.1 Sahebrao dealt blows with the sword to deceased Chandu. The evidence of P.W.1 Nirmala confirms the presence of P.W.3 Sharda on the spot. They also corroborate that accused No.1 Sahebrao dealt blows with the sword to deceased Chandu. The evidence of P.W.1 Nirmala confirms the presence of P.W.3 Sharda on the spot. Similarly the presence of P.W.2 Machhindra is also confirmed by the fact that he had sustained injury in the incident when he had tried to save Chandu. The Medical Certificate Ex.7l in regard to the examination of P.W.2 Machhindra has been placed on record. There is nothing in the cross examination of these two witnesses to suggest that they are not telling the truth. On behalf of accused No.1 a very strange suggestion has been given to witness No.2 Machhindra. It is suggested that one Sandeep Thorat had assaulted the deceased. There is no doubt that P.W.3 Sharda admits presence of Sandeep on the spot but strangely such suggestion is not given to P.W.1 or P.W.2, the other eye witnesses. Accused No.1 seems to be in dilemma as to what defence he should put forth. This shows that this defence that deceased, was assaulted by Sandeep Thorat is taken for the sake of taking some defence. We, therefore, find the evidence of all these eye-witnesses to be worthy of credit to hold that accused No.1 did assault the deceased with a sword. 8. There is also evidence of P.W.4 Niranjan on discovery of the sword at the instance of the accused No.1 Sahebrao. He states that he was called in the police station at about 1 p.m. and one Gautam Naik was also with him. He states that accused No.1 was in the police station and was interrogated in his presence, when accused No.1 said that he would show the place where he had concealed the sword. He states that police had prepared memorandum to that effect and then the accused took the police and panchas in a jeep near the public latrine in Vilas Nagar. P.W.4 has further stated that accused No.1 asked the jeep to be stopped near the public latrine. He went ahead and produced the sword from the waste material lying there. He also states that the said sword was seized under Ex.44. It was contended on behalf of the appellant that the witness is an interested witness in as much as he says in the cross examination that he was unhappy due to the death of Chandu and that he wanted to help the police. He also states that the said sword was seized under Ex.44. It was contended on behalf of the appellant that the witness is an interested witness in as much as he says in the cross examination that he was unhappy due to the death of Chandu and that he wanted to help the police. To be unhappy due to death of some body and a desire to help the police could not be a disqualification at all. In fact, he was doing the right thing which most of us avoid. He had identified the sword Article 'A' when it was shown to him in the Court. We find the evidence of witness No.4 Niranjan to be reliable. Ex.67 the report of the Chemical Analyser shows that human blood was found on the sword and the stains were of blood group 'A'. It is clear from the blood found on the earth at the place of incident, that it was blood of group 'A' which belongs to the deceased. Hence the blood on the sword could be said to be that of the deceased. Similarly on the shirt Article 10 belonging to accused blood stains of group 'A' were found. This evidence of discovery of the blood stained sword and the fact that the shirt belonging to the accused No.1 Sahebrao was found stained with blood matching the blood group of deceased, corroborates the version of the eye witnesses. 9. P.W.5 Arjun Taide is panch a on the discovery panchanama in respect of accused No.2. He also states that he was called in the police station and accused No.2 was present in the police station. He states that accused No.1 stated that he had concealed the sword in the house of the sister of his mother and the police had prepared a memorandum to that effect. He also states that accused No.2 led the police party and the panchas to the house of sister of his mother and produced the sword from the roof. There is nothing in the cross-examination of this witness also to discard his testimony. There is enough proof of discovery of the sword at the instance of the accused. We have seen that the accused no.2 had not made any use of the sword in his hand in the incident. There is nothing in the cross-examination of this witness also to discard his testimony. There is enough proof of discovery of the sword at the instance of the accused. We have seen that the accused no.2 had not made any use of the sword in his hand in the incident. Consequently it could not have any blood stains and was not a weapon used in the commission of the offence. Be that as it may, the fact is that the accused No.2had brought two swords with him and had retained one with him and he had later discovered the same by giving information to the panchas and the police. 10. It was contended on behalf of the accused No.1 Sahebrao that the incident of assault had taken place in a heat of passion in as much as the quarrel had taken place between the accused persons and the deceased. It was contended that only after the quarrel the incident took place and the accused No.1 did not act in a cruel manner in as much as he did not deal further blows after Chandu fell down and as such the case falls under Explanation 4 to Section 300 of the Indian Penal Code. The learned counsel for the appellant had drawn our attention to a case reported in Sukhbir Singh Vs. State of Haryana, (2002)3 Supreme Court Cases 327. Their Lordships have made the following observations: "To avail the benefit of Exception 4 to Section 300, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstances and only unpremeditated fight is such. The time gap between the quarrel and the fight is an important consideration to decide the applicability of the incident. Sudden fight though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstances and only unpremeditated fight is such. The time gap between the quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception." Having considered the ruling we find that it has no bearing on the case in hand. What is necessary to prove to bring the case within the exception is that there should be a sudden fight in a heat of passion upon a sudden quarrel. Evidence of P.W.4 Niranjan only shows that it was in fact accused No.1 who was abusing the deceased. Nothing has been elicited from any of the witness to show that there was any fight at all or that there was a quarrel as such, and the tempers on both sides were high. If accused No.1 alone was abusing the deceased then that could not be said to be a quarrel. Quarrel presupposes running of high tempers on both side's.' There is no evidence to that effect, therefore, there is no evidence. to suggest that there was any sudden fight or sudden quarrel which led to this incident. 11. Here it may be mentioned that the accused No.1 did not stop after dealing one blow on the head by sword but dealt another blow. He has chosen the most vital part of the body i.e. the head. P.W.9 Sanjay Kherde Ex.64 says that a heavy blow was dealt in as much as skull was fractured. The length of injury is 16 cm. X 1 cm. X 3 cm. Thus the injury was 3 cms. deep and the brain matter had come out. This shows that accused No.1 certainly intended to cause death and had acted in a very cruel manner. The act of dealing such a heavy blow with sword on the head was so imminently dangerous that a knowledge could be attributed to the accused that in all probabilities the person who sustained such blow would die. This shows that accused No.1 certainly intended to cause death and had acted in a very cruel manner. The act of dealing such a heavy blow with sword on the head was so imminently dangerous that a knowledge could be attributed to the accused that in all probabilities the person who sustained such blow would die. Hence to our mind the case clearly falls under Section 302 of the Indian Penal Code. 12. On behalf of accused No.2 it was contended that the accused No.2 did not play any part in the assault at all. We have seen from the evidence already discussed that accused No.2 Jiwan brought two swords and handed over one to accused No.1 Sahebrao and retained the other with him. We have no manner of doubt about this role being played by accused No.2 Jiwan. Yet, the question that is raised is whether accused No.2 shared a common intention with accused No.1. It was contended that there is no overt act on the part of accused No.2 and in fact he ran away immediately after the assault. The evidence does show that accused No.2 did not do any overt act, on the other hand when deceased Chandu fell down after assault accused No.2ran away. In any case therefore, there is no evidence what so ever that in the actual assault accused No.2 has not taken any part. It cannot be said that simply because accused No.2 Jiwan brought the sword, he shared a common intention with the accused No.1 to do away with deceased Chandu. Had he shared it, he too could have and would have dealt the blows with the sword in his hand, but he refrained. He could not have the knowledge that accused No.1 would really make use of the sword in his hand and assault the deceased. The benefit of this reasonable doubt, therefore, must go to the accused No.2 Jiwan. As a result of the foregoing discussion the appeal preferred by the accused No.1 needs to be dismissed. While the appeal filed by accused No.2 needs to be allowed. Appeal No.483 of 2003 is dismissed and the order of conviction and sentence passed by the Sessions Judge is confirmed. Criminal Appeal No.480 of 2003 is allowed. The conviction of appellant-accused No.2 Jiwan is set aside. He stands acquitted of the offence punishable under Section 302 of Indian Penal Code. Order accordingly.