V.M. KANADE, J. :- The appellant is aggrieved by the judgment and order passed by the 8th Ad-hoc Additional Sessions Judge, dated 3.3.2006, whereby he convicted the appellant - the original accused, for the offence punishable under Section 302 of the Indian Penal Code and has sentenced to suffer R.I. For life and to pay a fine of Rs.1000/- and in default to suffer simp1e imprisonment for one year. 2. Dr. Chaudhary, the learned counsel appearing on behalf of the appellant, at the outset, fairly submitted that he did not wish to challenge the incident in question and his only argument would be that the case of the appellant would not fall under Section 302 of the Indian Penal Code but would fall under Section 304 Part-II and to that extent the sentence of imprisonment for life should be set aside and that the appellant should be sentenced to undergo regorous imprisonment for the period which has already undergone in jail. He submitted that the appellant is in jail from the date of his arrest. 3. The prosecution's case is that, the appellant Ravi and deceased Raju were both working on the handcart of complainant PW-l Kailash Sahu who was carrying on the business of selling Vada-pav and in the evening they used to go to drink liquor in fountain gully, Mumbai. According to the prosecution, on 29.10.2005 at about 8.15 p.m. PW-1 closed his business and he along with deceased Raju and accused Ravi went to drink liquor in Fountain Gully and when they were coming out of the liquor shop, there was a quarrel between the accused Ravi and deceased Raju. It is alleged that when they reached the pan shop, the deceased picked up a quarrel with the accused Ravi and started abusing and assaulting the appellant with fists and kick blows. At that point of time, PW-I Kailash Sahu intervened and tried to pacify them and he took the appellant near Sai Baba Mandir outside the Principal City Civil and Sessions Court, Mumbai. According to the prosecution, the deceased was following them and when they reached the corner of the said road, again the deceased started abusing accused Ravi arid again the complainant PW-I pacified the accused, the appellant herein. According to the prosecution, the deceased was following them and when they reached the corner of the said road, again the deceased started abusing accused Ravi arid again the complainant PW-I pacified the accused, the appellant herein. But inspite of that, deceased Raju assaulted the accused and at that time, accused suddenly took out a pocket knife and assaulted the deceased with his knife. The deceased was taken to the S1. George Hospital. However, he succumbed to the injuries and died. The accused was arrested, panchnama was made, statement of the doctor was recorded, the blood stained clothes were seized and the knife was seized. The blood stained clothes were sent to the Chemical Analyzer and thereafter charge-sheet was filed. The prosecution examined three eye-witnesses and also relied on circumstantial evidence and on the basis of this evidence, the appellant was convicted by the Sessions Court. 4. We have heard Dr. Chaudhary, the learned counsel appearing on behalf of the appellant and Dr. Shaikh, the learned APP appearing on behalf of the State. Dr. Chaudhary, has made submissions only on the point of offence which was committed by the appellant and submitted that the case of the appellant would fall under Exception (4) to Section 300 and submitted that at the highest the appellant should have been convicted for an offence under Section 304 Part-II. He submitted that it is not in dispute that the death of deceased Raju was a homicidal and he did not challenge the other findings regarding the assault by the appellant on the deceased. He further submitted that there was 19 injuries on deceased Raju. Out of them, only four injuries were serious and other injuries were superfluous wounds caused on the hands and other non-vital organs of the body. He submitted that four injuries, namely, Injury Nos.11, 14, 16 and 19 were serious injuries. He submitted that even if the said injuries are considered in isolation, the said injuries by themselves were not sufficient in the nature to cause the death though the cumulative effect of those four injuries had resulted in a shock and which had been the cause of death. He submitted that even if the said injuries are considered in isolation, the said injuries by themselves were not sufficient in the nature to cause the death though the cumulative effect of those four injuries had resulted in a shock and which had been the cause of death. He submitted that the incident in question had taken place at the spur of the moment and there was no premeditation on the part of the appellant in committing the said offence and it is only after the appellant was abused and assaulted incessantly by the deceased, he picked up a pocket knife and had assaulted the deceased. It was submitted that the appellant did not act in the cruel manner and, therefore, the case squarely fall within the four corners of Exception 4 to Section 300. 5. The learned APP appearing on behalf of the State further submitted that it cannot be said that the case fell under the four corners of Exception 4. He submitted that the appellant had inflicted as many as 19 injuries that it self showed the intention of the appellant. He submitted that four injuries were fatal since they were on the vital parts of the body. 6. After having heard both the learned counsel at length and after having gone through the impugned judgment and Order of the Trial Court and the evidence which was produced on record, we are of the view that there is much substance in the submissions made by the learned counsel for the appellant. 7. PW-l who is the complainant and who was present at the site and had witnessed the entire incident, has clearly narrated that deceased Raju had picked up quarrel with the appellant and though the appellant was walking ahead of the deceased along with PW-1, the deceased intermittently picked up quarrel with the appellant and he used to abuse the appellant in a filthy manner and also had assaulted the appellant with fists and kick blows and as such from his evidence and the evidence of two other eye-witnesses, it is clearly established that the incident in question had taken place on the spur of the moment and there was sudden fight. From the evidence of the eye-witness it is seen that it is only after the deceased had assaulted and abused the appellant on more than one occasion, the appellant had taken out a pocket knife and had assaulted the deceased with that knife. 8. Though much emphasis has been led by the learned APP on behalf of the State that there are 19 injuries caused to the deceased with that pocket knife, perusal of those injuries would clearly reveal that except the four injuries mentioned by the doctor, who performed the postmortem, the other injuries are superfluous in nature. There is no material on record to show that the appellant had acted in a cruel or in an unusual manner. Since it is not the case of the prosecution that even after the deceased fell down the appellant continued to assault him with the knife. Taking into consideration this evidence, in our view, it will not be possible to come to a conclusion that the appellant had committed an offence punishable under Section 302 of the I.P.C. 9. Hence, the following order is passed :- (1) The appeal is partly allowed and the judgment and order of the Trial Court is partly set aside and the appellant is acquitted of the offence punishable under Section 302 of the I.P.C. and his sentence of imprisonment for life is also set aside. The appellant, however, is convicted for the offence punishable under Section 304 Part I and is sentenced R. I. for 10 years and also to pay fine of Rs. 1000/- and in default to suffer simple imprisonment for six months. (2) The appellant is entitled to get the benefit of set off for the period of detention which he has already undergone against the sentence of imprisonment under Section 428 of the Cr. P.C. 10. The appeal is accordingly disposed of in the aforesaid terms. 11. Criminal Application No. 1564 of 2011 does not survive and is disposed of accordingly. Ordered accordingly.