JUDGMENT : Mohammad Rafiq, J. 1. This appeal is directed against the judgment dated 23.11.2016 passed by the Additional Sessions Judge, Bhawani Mandi, District Jhalawar in Sessions Case No.06/2010 by which accused-appellant Meharban has been convicted as under: “U/s.302 IPC- life imprisonment with a fine of Rs.10,000/-, in default of payment of fine, to further undergo six months additional simple imprisonment. U/s. 379/511 IPC- six months simple imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo seven days additional simple imprisonment. U/s.4/25 Arms Act- six months simple imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo seven days additional simple imprisonment. It has been ordered that all the sentence of accused appellants will run concurrently.” 2. Brief and relevant facts giving rise to the present appeal are that on 10.11.2009 the complainant Atmaram (PW6) lodged a written report with Police Station, Dag, District Jhalawar against the accused appellant regarding an incident which took place on the same day. It was stated in the report that today in the evening at about 6.00 pm, he along with his `bhabhi’ Bhagwati Bai and Ganesh S/o Satya Narain Barber was going by Farida Bus from Dug. When they reached Luhariya Village Bus Stand, all passengers came out from the bus and Ganesh was sitting in the corner of his seat. In that bus, Meharban S/o Ram Lal, B/c Suthar, R/o Luhariya was also sitting. When Meharban tried to snatch mobile phone from the pocket of Ganesh, Ganesh caught hold of his hand. Thereupon, Meharban took out a knife from his pocket and inflicted a blow thereof on right side stomach of Ganesh. Ganesh cried and he tried to catch hold of Meharban, but Meharban showed him knife and said that if anybody tried to catch him, he would cause knife injuries to him too. Ganesh fell on the seat in the bus and blood was oozing from his stomach. Meharban fled therefrom. Kaushal Bai and Bhagwan Singh Rajput Nandpur took Ganesh up. Other passengers also saw the incident and came out of the bus. Then they took Ganesh to hospital at Dag in the same bus, but Doctor declared him brought dead. 3. On the basis of the above mentioned report, the police registered a criminal case bearing FIR No.187/2009 for offence under Section 302 IPC and investigation commenced. Other passengers also saw the incident and came out of the bus. Then they took Ganesh to hospital at Dag in the same bus, but Doctor declared him brought dead. 3. On the basis of the above mentioned report, the police registered a criminal case bearing FIR No.187/2009 for offence under Section 302 IPC and investigation commenced. The police conducted investigation and submitted charge sheet against the accused appellant for offence under Sections 302, 379/511 IPC and Section 4/25 of Arms Act in the court of concerned Magistrate, who took cognizance of offence against the accused appellant. The offences being exclusively triable by the court of Sessions, the learned Magistrate committed the case to the court of learned Additional Sessions Judge, Bhawani Mandi, District Jhalawar for trial. The learned trial court after hearing the arguments on charge, framed the charges against the accused appellant for offence under Sections 302, 379/511 IPC and Section 4/25 of Arms Act. The accused appellant denied the charges and claimed to be tried. During trial the prosecution examined as many as 19 witnesses and also got exhibited 26 documents in support of its case. After completion of prosecution evidence, the learned trial court recorded statement of the accused appellant under Section 313 Cr.P.C. wherein he denied the allegation and stated that he has been falsely implicated in this case. The learned trial court heard the final arguments and vide impugned Judgment dated 23.11.2016 has convicted the accused appellant for offence under Sections 302, 379/511 IPC and Section 4/25 of Arms Act and sentenced him as mentioned above. Hence this appeal. 4. Shri Ajay Singh, learned counsel for the accused-appellant has argued that the learned trial court has committed serious error of law as well as fact in convicting and sentencing the accused appellant for offence under Sections 302, 379/511 IPC and Section 4/25 of Arms Act. It is submitted that no such alleged offence is made out and proved against the accused appellant from the bare perusal of the evidence came on record during investigation and produced by the prosecution. It is submitted here that the prosecution has completely failed to prove guilt of the accused appellant beyond all reasonable doubt. It is submitted that no such alleged offence is made out and proved against the accused appellant from the bare perusal of the evidence came on record during investigation and produced by the prosecution. It is submitted here that the prosecution has completely failed to prove guilt of the accused appellant beyond all reasonable doubt. The learned trial court has convicted and sentenced the accused appellant only on the basis of mere surmises and conjectures, hence the conviction of the accused appellant is bad in law and he deserve to be acquitted. 5. It is contended that the learned trial court has failed to consider that while appreciating the evidence in a criminal case, the court should keep in view the two cardinal principles that the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely by showing the preponderance of probability in favour of the plea taken by him. It is submitted that there are several infirmities and contradictions in the statements of the prosecution witnesses and therefore no reliance can be placed upon the testimony of such witnesses. The conviction based on such evidence is not sustainable and the same is liable to be quashed and set aside. 6. Learned counsel argued that the learned trial court has failed to consider that in this case the alleged incident started on a dispute regarding mobile handset because in the written report Ex.P.-8 it has been stated by complainant Atma Ram that accused appellant tried to snatch the mobile phone from the pocket of deceased Ganesh and when Ganesh caught hold the hand of the appellant, then the appellant inflicted knife blow on right side stomach of deceased but it is relevant to mention here that the said mobile phone has neither been recovered from the deceased nor from the accused appellant nor the said mobile phone has recovered from any other person. Hence the entire prosecution story becomes false and doubtful. 7. Hence the entire prosecution story becomes false and doubtful. 7. Learned counsel submitted that the learned trial court has further failed to consider that the prosecution witnesses namely; Bhagwati Bai (PW8) and Atma Ram (PW6) have not stated in their statements that why and for what reason, they went to town Dag and from where and what goods they have purchased and in this regard no bill of any goods has been produced on record. Thus it is not proved that these two witnesses went to town Dag but only to falsely implicate the appellant both of them have been planted witnesses. The police has not recorded the statement of any independent witness to prove that both the above named witnesses were present at the place of alleged incident. 8. Learned counsel further argued that the learned trial court has further failed to consider that the prosecution has not got exhibited the F.S.L. report during evidence. It has further failed to consider that Dr. Veeramchand Mewada (PW12) has admitted in his cross examination that if the deceased would have been taken to hospital in time, his life could have been saved and he would not have been died. Learned counsel submitted that it is not proved that the injury alleged to have been sustained by the deceased was dangerous to life or sufficient to cause death in the ordinary course of nature. In this case, there was no motive of accused appellant to commit murder of deceased. It is submitted here if there was any motive of accused to commit murder of deceased then he would have made repeated blows by knife on the deceased. If the accused appellant had inflicted knife blow on the deceased then also no offence under Section 302 IPC is made out and at the most the offence would not travel beyond the limit of Section 304 Part-II IPC because while inflicting knife blow, there was no intention or motive of the accused appellant to commit murder of the deceased. 9. Shri Ajay Singh, learned counsel for the accused-appellant argued that the recovery of knife vide Ex.P11 has been sought to be proved by the statement of attesting witnesses Shiv Singh (PW11) and Vikram Singh (PW15). 9. Shri Ajay Singh, learned counsel for the accused-appellant argued that the recovery of knife vide Ex.P11 has been sought to be proved by the statement of attesting witnesses Shiv Singh (PW11) and Vikram Singh (PW15). Shiv Singh (PW11) in his statement has admitted that there was an old enmity between the accused and him and, therefore, he is not reliable witness, but Vikram (PW15) in cross examination has stated that police brought the knife and that he was made to sign the papers on dotted lines. Learned counsel submitted that Kaushal Kumar (PW3), the cleaner, Mustkeen (PW9), the conductor and Shaukat Ali (PW10), the driver have turned hostile and have not supported the prosecution case. In the circumstances, learned counsel submitted that the accused-appellant could not have been convicted by merely relying on statement of Atma Ram (PW6), Bhagwan Singh (PW7) and Bhagwati Bai (PW8). While Atma Ram (PW6) and Bhagwati Bai (PW8) are respectively brother and `bhabhi’ of the deceased, Bhagwan Singh (PW7) is a passenger. 10. Learned counsel for the accused-appellant has submitted that Bhagwati Bai (PW8) has stated that when deceased Ganesh was hit by knife in the stomach by the accused, he fell on her lap. Atma Ram (PW6) has also stated that when he took deceased in his lap, his clothes were soaked with blood, but clothes of neither Bhagwati Bai, nor Atma Ram have been shown seized by the police. Learned counsel argued that the allegation that accused was trying to steal mobile handset from the pocket of deceased has not been proved inasmuch as no mobile phone has been recovered and yet the learned trial court has taken this as the motive for the incident that when the deceased caught the hand of the accused during his attempt to steal mobile handset, the accused inflicted knife blow in his stomach. Learned counsel for the accused-appellant has argued that since the mobile handset having not been recovered neither the motive can be taken to have been proved, nor the offence of theft for which accused has been convicted for offence under Section 379 read with Section 511 IPC can be held to be proved. 11. Learned counsel for the accused-appellant has argued that since the mobile handset having not been recovered neither the motive can be taken to have been proved, nor the offence of theft for which accused has been convicted for offence under Section 379 read with Section 511 IPC can be held to be proved. 11. Alternatively, learned counsel for the accused-appellant has argued that in the present case, the incident had taken place, as per the own showing of the prosecution witnesses when the accused attempted to steal the mobile handset from the pocket of the deceased, which was forbade by the deceased, as a result of which, a sudden fight ensued when the deceased prevented him from doing so. In that process, the deceased allegedly sustained a fatal blow in his stomach at the hands of the accused. The accused by not repeating the blow has not taken any undue advantage and has not acted in a cruel or unusual manner. The accused may be taken to have caused the injury while he was deprived of the power of self control by grave and sudden provocation. The case of accused-appellant thus would fall either in exception (1) or in exception (4) to Section 300 IPC and would be culpable homicide not amounting to murder punishable in Part- I of Section 304 IPC. Learned counsel in support of his arguments has relied on the judgment of this Court dated 15.02.2017 passed in D.B. Criminal Appeal No.973/2012, Sheru Khan vs. State of Rajasthan. 12. Smt. Sonia Shandilya, learned Public Prosecutor opposed the appeal and argued that the guilt of the accused-appellant has been proved beyond reasonable doubt by testimonies of prosecution witnesses namely; Atma Ram (PW6), Bhagwan Singh (PW7) and Bhagwati Bai (PW8), who have consistently proved that the accused inflicted knife blow in the stomach of deceased without any provocation or without any sudden fight or quarrel between them and, therefore, case of accused-appellant can neither fall in exception (1), nor in exception (4) to Section 300 IPC so as to bring the offence within the purview of Part-I of Section 304 IPC as has been argued by learned counsel for the accused-appellant. 13. Learned Public Prosecutor submitted that there is no evidence to the effect that any grave or sudden provocation is given to the accused by the deceased. 13. Learned Public Prosecutor submitted that there is no evidence to the effect that any grave or sudden provocation is given to the accused by the deceased. Learned Public Prosecutor also argued that present case also cannot fall in exception (4) because there was no sudden fight in the heat of passion upon a sudden quarrel. Merely because the accused did not repeat the injury, would not bring the case within the purview of exception (4). Pre-requisite ingredients of which are that it must be proved on record by evidence that there was sudden fight in the heat of passion upon a sudden quarrel and the evidence in the present case is totally missing on that aspect. Learned Public Prosecutor submitted that mere non-recovery of mobile handset does not, in any manner, disproves the allegation against the accused that incident took place when the deceased resisted the attempt made by the accused to steal his mobile handset. It is therefore prayed that the impugned judgment of conviction and sentence is just and legal and does not call for interference from this Court and the appeal be therefore dismissed. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. The first version that the informant Atma Ram (PW6) has given in the written report is the one, which has been throughout maintained by the prosecution witnesses namely; Atma Ram (PW6), Bhagwan Singh (PW7) and Bhagwati Bai (PW8). It is true that Kaushal Kumar (PW3), the cleaner, Mustkeen (PW9), the conductor and Shaukat Ali (PW10), the driver, have turned hostile and not supported the case of the prosecution. It is quite unfortunate that they have even denied that any such incident took place in their bus, although the evidence on record i.e. the photographs of dead body (Ex.P4) clearly show to the contrary. Be that as it may, we have now to test correctness of the impugned judgment on the basis of three witnesses, who are supporting the case of the prosecution. Informant Atma Ram (PW6) has alleged in the written report that he was sitting on a seat ahead of deceased Ganesh. The accused was also sitting in the same bus. The accused tried to steal mobile handset from the pocket of Ganesh. Informant Atma Ram (PW6) has alleged in the written report that he was sitting on a seat ahead of deceased Ganesh. The accused was also sitting in the same bus. The accused tried to steal mobile handset from the pocket of Ganesh. When Ganesh caught hold of his hand, accused suddenly took out the knife from his pocket and inflicted the same in the right side of his stomach. This witness tried to catch the accused, but accused showing the knife threatened him (informant) that if anybody tried to catch him, he would inflict the knife blow. Ganesh fell in the bus and started bleeding profusely. Accused fled away from there. They immediately removed Ganesh in seriously injured condition to the hospital where he was declared brought dead. Ex.P12 is the postmortem report of deceased Ganesh, according to which the accused sustained the following injuries in the abdomen: “There were one stab wound 3x2 cm. right mid axillary limb over. One lacerated wound 8x4 cm. with intestine coming out at right hypochondrium.” The cause of death in the postmortem report was indicated as follows: “In our opinion Shri Ganesh S/o Shri Satya Narayan, Age 32 years, R/o Nandpur, P.S. Dag was died because of hypovolemic shock due to excessive bleeding from liver laceration and mesenteric tear.” Dr. Veeram Chand Mewara (PW12) has proved the postmortem report and the cause of death. He has stated that the deceased had two injuries; (i) one stab wound in the size of 3x2 cm. in right mid axillary limb over and (ii) one lacerated wound in the size of 8x4 cm. with intestine coming out at right hypochondrium. Dr. Shakil Ahmed Khan (PW14) has also supported the version of Dr. Veeram Chand Mewara (PW12). Coming now to the eye witnesses’ account, the informant Atma Ram (PW6) has proved contents of the FIR and has remained consistent with what he has stated in the first version given in the FIR. He has alleged that Ganesh inflicted a knife blow in the stomach of the deceased and then fled away. Ganesh started bleeding. Accused had attempted to steal mobile handset of the deceased, who caught his hand. The accused then inflicted knife blow on his stomach. Bhagwati Bai and Ganesh were sitting on the same seat. No sooner Ganesh received knife blow, he fell on the lap of Bhagwati Bai. Ganesh started bleeding. Accused had attempted to steal mobile handset of the deceased, who caught his hand. The accused then inflicted knife blow on his stomach. Bhagwati Bai and Ganesh were sitting on the same seat. No sooner Ganesh received knife blow, he fell on the lap of Bhagwati Bai. This witness was sitting one seat ahead of Ganesh and Bhagwati Bai. The deceased was immediately taken to hospital in the same bus, but was declared brought dead. The inquest of the dead body is Ex.P1 and site plan is Ex.P6. This witness has been subjected to intense cross examination but remained firm. He has denied the suggestion that he was not aware of the fact that a quarrel had taken place between the accused and the deceased. He also denied the suggestion that accused did not inflict knife blow on the deceased and that some other person has caused injuries on him by knife. The accused-appellant Meharban by inflicting knife blow on the deceased fled away and no passenger of the bus could catch him. 16. Similar statement has been given by Bhagwati Bai (PW8). It is stated by her that she and Ganesh were sitting on the same seat and Atma Ram was sitting on the next seat ahead of them. Accused-appellant Meharban, who was sitting behind them suddenly came in front and tried to take out the cellphone from the pocket of deceased Ganesh. Ganesh forbade him from doing so and scolded him what he was doing. Suddenly, accused-appellant took out the knife from his pocket and inflicted a blow thereof in the stomach of Ganesh. When the other passengers tried to catch hold of him, he threatened them with dire consequences if anybody dared to catch him. Then the accused-appellant fled away from there. Ganesh, who was her `devar’, fell into her lap. The fact that these two witnesses have stated that their clothes were soaked in blood when they were trying to take care of the deceased Ganesh in a critically injured position, mere non-recovery of their clothes may be a lacuna/discrepancy in the investigation of the police like non-recovery of the mobile handset, but that lacuna cannot be so significant as to completely throw away the case of the prosecution. It is otherwise proved that the incident had taken place in the bus, in which all three of them namely; Ganesh, Atma Ram and his `bhabhi’ Bhagwati Bai were travelling and, therefore, merely because they happened to be related to deceased cannot be a reason to discard their testimony. 17. Apart from the evidence of the informant Atma Ram and Bhagwati Bai, there is independent witness, who has supported the case of the prosecution namely; Bhagwan Singh (PW7). He has stated that he as well as several other passengers were sitting in the bus, which was named Farida. The accused-appellant Meharban was also sitting in the said bus. Bhagwan Singh has then stated that he was sitting one seat ahead of Ganesh. Suddenly he heard some sound of scuffle. When he turned behind, he saw accused-appellant inflicting a knife blow in the stomach of the Ganesh. He as well as other passengers tried to lookafter Ganesh. Ganesh’s `bhabhi’ Bhagwati Bai was also sitting in the bus. When he tried to over power the accused, accused-appellant by showing knife to all the passengers fled away from there. Even this witness has stated that in the process of taking care of the deceased, some stains of blood were received on his shirt, but in cross examination, he stated that he was not aware as to for what reason the dispute between the two took place. Such minor discrepancy, notwithstanding the fact that this witness in substance supports the same version, which has been given by the informant Atma Ram (PW6) and Bhagwati Bai (PW8), thus provides corroboration to their testimony. The knife recovered at the instance of accused-appellant also provides corroboration to the statement of medical expert Dr. Veeram Chand Mewara (PW12) and Dr. Shakil Ahmed Khan (PW14), who have proved the postmortem report, according to which the deceased sustained one stab wound in the size of 3x2 cm. right mid axillary limb over and one lacerated wound in the size of 8x4 cm. with intestine coming out at right hypochondrium. Dr. Veeram Chand Mewara (PW12) has stated on examination of the abdomen that it had lacerated penetrating wound of about 8x4 cm. penetrating into liver and intestine causing the liver laceration (right lobe). The intestine was cut partially 2 feet distal to gastrojejunal junction with mesenteric tear of 4x2 cm. Another injury was penetrating wound which reached below ribs. Dr. Veeram Chand Mewara (PW12) has stated on examination of the abdomen that it had lacerated penetrating wound of about 8x4 cm. penetrating into liver and intestine causing the liver laceration (right lobe). The intestine was cut partially 2 feet distal to gastrojejunal junction with mesenteric tear of 4x2 cm. Another injury was penetrating wound which reached below ribs. Peritoneum cavity was filled with blood. On the right side of lever, there was crushed wound in the size of 6 x 2 cm, which was 2 cm. deep. 18. Coming now to the alternate argument of the learned counsel for the accused-appellant, we find that the evidence in the present case is not where this case could fall either in exception (1) or in exception (4) to Section 300 IPC. We are not inclined to uphold the argument that accused was deprived of power of self control by grave and sudden provocation and, therefore, put the deceased to death. There was, in fact, no provocation at all. On the contrary, the accused-appellant was the one, who attempted to steal the cellphone of the deceased and when the deceased caught his hand, he inflicted the knife blow on his stomach. In order to free himself from his control, the accused-appellant took out knife from his pocket and delivered the blow on right side of his stomach. The facts of the case are not even such where it can be said that a sudden fight in the heat of passion took place upon sudden quarrel without the premeditation on the part of the accused. Mere fact that accused did not repeat the injury and therefore he cannot be said to have taken undue advantage or acted in a cruel or unusual manner, would not bring the offence in exception (4) supra. And on that basis, the further argument that he cannot be held to have taken undue advantage by acting in a cruel or unusual manner also would not make out a case to fall in exception (4) to Section 300 of IPC. All the ingredients of the first part of this exception have to be satisfied that the accused (i) committed the offence without premeditation, (ii) in a sudden fight, (iii) in the heat of passion, (iv) upon a sudden quarrel. All the ingredients of the first part of this exception have to be satisfied that the accused (i) committed the offence without premeditation, (ii) in a sudden fight, (iii) in the heat of passion, (iv) upon a sudden quarrel. All these have to be then accompanied by the other ingredients found in later part of exception (4) namely – the accused has not taken undue advantage or acted in a cruel or unusual manner by not repeating the injury. We deem it appropriate to reproduce exception (4) of Section 300 IPC : “Exception 4-- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault.” 19. The perusal of the aforesaid exception shows that two parts of this provision have been separated by the use of word “and”. The ingredients of the first part and second part are both equally important in order to put the case under exception (4). While as per the first part, all the above referred to four ingredients should be satisfied, but either of the two ingredients in second part should also be present along therewith namely; that the accused must not have taken undue advantage or must not have acted in a cruel or unusual manner. Mere fact that as per the defence, accused inflicted one injury and did not repeat would by itself not bring his guilt within exception (4) because none of the four ingredients of the first part of the aforesaid exception (4) is present there. Besides, as per the postmortem report, there were two injuries; one was stab wound in the size of 3 x 2 cm on right mid ancillary line over abdomen and another was lacerated wound in the size of 8 x 4 cm with intestine coming out of right hypochondrium. Thus the injuries are more than one. Even as per the statement of Dr. Veeram Chand Mewara (PW12) and Dr. Shakil Ahmed Khan (PW14), it cannot be said that there was only one single injury caused to the deceased. Thus the injuries are more than one. Even as per the statement of Dr. Veeram Chand Mewara (PW12) and Dr. Shakil Ahmed Khan (PW14), it cannot be said that there was only one single injury caused to the deceased. And even if this is considered as one injury, the intensity with which the knife was inflicted on the stomach of the deceased which is evident from the photographs of the deceased available on record at Annexure- Ex.P4 and the testimony of Dr. Veeram Chand Mewara (PW12) and Dr. Shakil Ahmed Khan (PW14), would not bring the offence in the purview of exception (4) to Section 300 IPC and for that reason in Section 304 Part-I IPC. 20. In view of the above discussion, we do not find any infirmity in the impugned judgment passed by the learned court below. The appeal is dismissed.