Judgment : SMT. V.K. TAHILRAMANI, J. :- This appeal is directed by the appellant-original accused against the judgment and order dated 15.2.2010 passed by the learned Principal Judge, City Civil and Sessions Court, Greater Bombay in Sessions Case No. 371 of 2009. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to life imprisonment. 2. The prosecution case, briefly stated, is as under : Deceased Mehmood Khan used to reside at Ashok Nagar, Ghatkopar (W), Mumbai. His brother PW-1 Washim Mohd. used to reside separately in the same locality i.e. Ghatkopar (W). Deceased Mehmood Khan used to operate a club at Hanuman Nagar, Ghatkopar in a room taken on hire basis. On the day of the incident, the appellant and one Vinod were in the attic of the club. A quarrel took place between them. Hence, Mehmood Khan who was in the club, came up, slapped the appellant and threw him out of the club. At that time, PW-3 Shamim was present in the club as he had come to fix the blower fan in the club of the deceased. After the appellant was thrown out of the club, he stood outside the club and threatened that he would close the business of the deceased. Thereafter, Mehmood Khan went to a tea-stall to give the order for tea. The said tea stall was near the club. At that time, Mehmood Khan saw the appellant. Since the appellant had threatened Mehmood Khan, Mehmood Khan told PW-3 Shamim that he would go to the appellant and question him. Thereafter, Mehmood Khan came near the appellant and caught collar of the shirt of the appellant. Mehmood Khan told the appellant that he was unnecessarily putting his business in danger. Thereafter Mehmood Khan tried to turn himself by keeping the collar of the shirt of the appellant in his hand. At that time, the appellant took out a knife from his person and stabbed Mehmood Khan. Mehmood Khan caught hold of the knife which was in the hand of the appellant, however, the appellant snatched the knife from the hands of Mehmood Khan and ran away. Mehmood Khan fell down. PW-1 Washim the brother of Mehmood Khan, was informed. He came to the spot. Thereafter, Mehmood Khan was taken to Rajawadi Hospital. However, he was declared dead before admission. Mehmood Khan fell down. PW-1 Washim the brother of Mehmood Khan, was informed. He came to the spot. Thereafter, Mehmood Khan was taken to Rajawadi Hospital. However, he was declared dead before admission. PW-l Washim lodged F.I.R. (Exh.9). During the course of investigation, the knife as well as blood stained clothes of the appellant came to be recovered at his instance. After completion of investigation, charge sheet came to be filed against the appellant. 3. Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant was that of total denial and false implication. After going through the evidence adduced in the present case, the learned Judge convicted and sentenced the appellant as stated in para 1 above, hence, this appeal. 4. We have heard the learned appointed advocate for the appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, we are of the opinion that the appellant assaulted Mehmood Khan with a knife and caused his death. 5. There are two eye witnesses in the present case i.e. PW-2 Mohd. Akhtar and PW-3 Shamim Akhtar. PW-3 Shamim was present in the club of the deceased when the incident occurred. This witness has stated that he was acquainted with the deceased as well as the appellant. The deceased was operating a club. Deceased Mehmood Khan had called him to fix a blower fan in his club. Hence, he went to the club and fixed the fan. Thereafter, PW-3 Shamim went to sleep in the club. He heard a shout. Hence, he got up. He found that the appellant was quarreling with one Vinod in the attic of the club. Hence, deceased Mehmood Khan went there, slapped the appellant and threw him out of the club. The appellant was abusing Mehmood Khan and saying that he would close his business. PW-3 Shamim has further stated that thereafter Mehmood Khan went to a tea-stall near the club to give order for tea. At that time, Mehmood Khan saw the appellant. Hence, deceased Mehmood Khan went there, slapped the appellant and threw him out of the club. The appellant was abusing Mehmood Khan and saying that he would close his business. PW-3 Shamim has further stated that thereafter Mehmood Khan went to a tea-stall near the club to give order for tea. At that time, Mehmood Khan saw the appellant. Mehmood Khan told PW-3 Shamim that since appellant Aliullah Khan was threatening him, he would go to Aliullah Khan and question him. Thereafter, Mehmood Khan went to the appellant Aliullah Khan and caught collar of his shirt. Mehmood Khan was telling Aliullah Khan that he was unnecessarily putting his business in danger. Thereafter, Mehmood Khan tried to turn himself by keeping the collar of the shirt of Aliullah Khan in his hand. At that time, the appellant took out a knife from his person and stabbed Mehmood Khan. Mehmood Khan caught hold of the knife which was in the hand of the appellant. However, the appellant snatched the knife from the hands of Mehmood Khan and ran away. Mehmood Khan fell down. 6. PW-2 Mohd. Akhtar is an eye witness to the incident. This witness has stated that he was acquainted with the deceased as well as the appellant. On 21.3.2009 in the afternoon, he was returning back. He saw that a mob had gathered. Therefore, he climbed on a platform in order to see what had happened. He saw that Mehmood Khan and the appellant had caught collars of each other. Both of them were asking each other to release the respective collar. During the said quarrel, the appellant took out knife like weapon from his person and stabbed Mehmood Khan twice on the chest. Mehmood Khan caught hold of the knife. Thereafter the appellant snatched the knife and ran away. Deceased Mehmood Khan then fell on the ground. Both PW-2 Mohd. Akhtar and PW-3 Shamim have not been dislodged in their cross-examination, hence, we have no hesitation in relying on their testimony. Their testimony establishes that the appellant assaulted deceased Mehmood Khan with a knife. 7. The prosecution case that Mehmood Khan was stabbed with a knife is also corroborated by the medical evidence. PW-5 Dr. Bhalepatil conducted the post-mortem on the dead body ofMehmood Khan. Their testimony establishes that the appellant assaulted deceased Mehmood Khan with a knife. 7. The prosecution case that Mehmood Khan was stabbed with a knife is also corroborated by the medical evidence. PW-5 Dr. Bhalepatil conducted the post-mortem on the dead body ofMehmood Khan. He saw the following external injuries on the person of Mehmood Khan : "(i) Stab injury at left infero lateral to left nipple of chest admeasuring 4 x 1.5 x 5 cm. deep. Margins elliptical, clean cut, reddish, regular coupled with blood clots on opening, 4th and 5th intercostal space with contusion of muscles and same dimension injury seen in left lung; (ii) Stabbing injury 4 x 2 x 5 cm. deep below injury no. 1, margin elliptical, reddish, regular clean cut. On opening, injury communicates to spleen and vessels injury with blood clots; (iii) Stab injury on the right arm, middle aspect 4 x 2 x 2 cm., reddish margin elliptical with blood clots." According to the Doctor, all the injuries were antemortem. In the opinion of Dr. Bhalepatil, the probable cause of death was "shock due to multiple unnatural stab injuries". In his opinion, all the injuries caused to Mehmood Khan were possible by knife Article-4. Dr. Bhalepatil further opined that the external injury nos. 1 and 2 along with corresponding internal injuries were sufficient in the ordinary course of nature to cause death. 8. PW-1 Was him was the younger brother of deceased Mehmood Khan. He and his brother Mehmood Khan were residing in the same locality i.e. Ghatkopar but in separate rooms. PW-1 Washim has stated that his brother Mehmood Khan used to operate a club in a room taken on hire basis. This witness has stated that he knew the appellant. On 21.3.2009 at about 2 to 2.30 p.m. one boy came and informed him that quarrel was going on and his brother Mehmood Khan was involved in a quarrel. PW-1 Washim hence went to the spot of quarrel in Hanuman Nagar at Ghatkopar. He saw his brother Mehmood Khan lying on the road. His clothes were soaked with blood. PW-1 Washim went to his brother Mehmood Khan and asked him as to what happened? At that time, Mehmood Khan told him that the appellant assaulted him. PW-1 Washim hence went to the spot of quarrel in Hanuman Nagar at Ghatkopar. He saw his brother Mehmood Khan lying on the road. His clothes were soaked with blood. PW-1 Washim went to his brother Mehmood Khan and asked him as to what happened? At that time, Mehmood Khan told him that the appellant assaulted him. Thus, oral dying declaration has been made by deceased Mehmood Khan to his brother wherein he has stated that appellant assaulted him with a knife. 9. In addition to the above evidence, the prosecution is relying on circumstantial evidence in the nature of recovery of knife and clothes of the appellant at his instance. PW-6 panch witness Bhai has deposed on this aspect. The panchnamas are at Exhs. 21 and 22. The evidence of PW-6 Bhai establishes that a knife Article-4 and shirt and pant Articles 8 and 9 were recovered at the instance of the appellant. The knife and clothes were sent to the C.A. As per the C.A. report the clothes of the appellant were stained with human blood, so also, knife was also stained with human blood. No explanation has been furnished by the appellant for the finding of human blood stains on the knife or the clothes which were recovered at the instance of the appellant. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh Vs. State of Rajasthan (2001) 2 SCC 205 : [2001 ALL MR (Cri) 764 (S.C.)], wherein it has been observed as under : "In view of the authoritative pronouncement of this Court in Teja Ram Case [ (1999) 3 SCC 507 ] we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant." 10. Ms. Ayubi submitted that even if it is accepted that the act of the appellant of assaulting Mehmood Khan with a knife resulted in his death, the case would not fall under Section 302 of IPC but it would fall under Section 304 Part-I or at the most it would fall under Section 304 Part-II of IPC. She pointed out that the evidence on record shows that a quarrel was going on between the appellant and Mehmood Khan which has been deposed to by PW-2 Mohd. Akhtar. She drew our attention to the evidence of PW-2 Mohd. Akhtar where he has stated that "during the said quarrel Aliullah Khan took out a knife like weapon from his person. It was having a black hilt and the blade was shinning. Aliullah thereafter stabbed twice below the chest of Mehmood Khan". Ms. Ayubi further submitted that the assault was not premeditated or preplanned but it happened on the spur of moment in a fit of anger. Ms. Ayubi further pointed out that the quarrel was started by deceased Mehmood Khan when he caught collar of the shirt of the appellant. Thereafter quarrel started and during the course of this quarrel, the appellant stabbed Mehmood Khan with knife. Ms. Ayubi reiterated that the fact that the appellant assaulted Mehmood Khan during the course of sudden quarrel, would bring the case under Exception 4 to Section 300 of IPC and would thus, be covered by Section 304 Part-II of IPC. 11. To bring the case within Exception 4 to Section 300 of IPC, all the ingredients mentioned in it, must be found. It is to be noted that the word 'fight' occurring in Exception 4 to Section 300 of IPC, is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that both the parties had worked themselves into a fury on account of the fight going on between them. It takes two to make a fight. Heat of passion requires that there must be no time for passion to cool down. In this case, the evidence shows that both the parties had worked themselves into a fury on account of the fight going on between them. The evidence on record shows that there was no premeditation on the part of the appellant. However, for the application of Exception 4 to Section 300 of IPC, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the appellant had not taken any undue advantage or acted in a cruel or unusual manner. The facts of this case show that the appellant did not take any undue advantage or act in a cruel or unusual manner. However, we are not prepared to accede to the submission of Ms. Ayubi that the case would fall under Section 304 Part-II of IPC. In our view, the case would fall under Section 304 Part-I of IPC because, we are of the view that the appellant did not just have the knowledge that his act is likely to cause death but in fact, the appellant intended to cause death of Mehmood Khan. We say so on the basis of the weapon used, the part of the body where the injuries were inflicted, the force used while assaulting and the nature of injuries. Looking to all the facts, we are of the considered opinion that the case cannot fall under Section 304 Part-II of IPC. 12. Considering the evidence on record, we are of the considered view that Exception 4 to Section 300 of IPC applies to the facts of the case and the appropriate conviction would be under Section 304 Part-I of IPC. Hence, the conviction and sentence under Section 302 of IPC is set aside. Instead, the appellant is convicted under Section 304 Part-I of IPC and is sentenced to R.I. for ten years and fine of Rs. 1000/- in default S.I. for one month. 13. Appeal is partly allowed to the aforesaid extent. 14. Office to communicate this order to the appellant and the Jail Superintendent in which Jail, the appellant is lodged. 15. At this stage, we must record our appreciation for Ms. Nasreen S.K. Ayubi appointed from the High Court Legal Services Committee Bombay to represent the appellant. 13. Appeal is partly allowed to the aforesaid extent. 14. Office to communicate this order to the appellant and the Jail Superintendent in which Jail, the appellant is lodged. 15. At this stage, we must record our appreciation for Ms. Nasreen S.K. Ayubi appointed from the High Court Legal Services Committee Bombay to represent the appellant. We found that she had meticulously prepared the matter and she has very ably argued the matter. We quantify total legal fees to be paid to her by the High Court Legal Services Committee at Rs. 2500/-. Appeal partly allowed.