JUDGMENT 1. All these three appeals arise out of the same judgment of the Sessions Judge, Jhunjhunu, dated 23rd No., 77, and hence, they are being disposed of by this common judgment.D. B. Cr. Appeal No. 148/78 has been preferred by the State of Rajasthan, by which, he acquitted the accused respondents of the offence under section 302, IPC or 302/149, IPC. The learned Sessions Judge has, however, found the accused persons Murari, Girdhari, Bhanwarial, Hariram, Banwari Lal and Naresh guilty under section 304, Part-II, IPC, and sentenced each of them to 7 years, RI, and a fine of Rs. 500/-, and in default of payment of fine, to further undergo 3 months, RI each. He also found accused Naresh, Basantlal, Hariram and Murari guilty of the offence under section 325, IPC, and sentenced each of them to 5 years R1 and a fine of Rs. 500/-, and in default of payment of fine, to further undergo 3 months RI each. He also found accused Girdhari and Bhanwarial guilty of the offence u/s- 325/149, IPC, and sentenced each of them, to 5 years RI and a fine of Rs. 500/-, and in default of payment of fine, to further undergo 3 months RI All the accused persons were also found guilty of the offence under sections 323 & 147, IPC, and sentenced to 2 months RI under section 323 IPC& 1 years RI each under section 147, IPC. All the substantive sentences were ordered to run concurrently. 2. The learned Sessions Judge acquitted accused Nandlal and Mahadev of the charges levelled against them. He also acquitted all the accused persons of the offence under section 302 or 302/149, IPC. 3. The State has preferred D. B. Cr. Appeal. No. 148/78, against the acquittal of the accused persons under section 302 or 302/149, IPC. 4. Accused Murari has preferred two appeals, B. Cr. Appeals Nos. 42 & 43 of 1978. D.B. Cr. Appeal No. 42/78 is a represented appeal of Murari accused, whereas, D. B. Cr. Appeal No. 43/78 has been preferred by him through the jail authorities. 5. We have heard the learned public prosecutor and also prosecutor the Judgment of the learned Sessions Judge as well as the entire record of the trial court. D.B. Cr. Appeal No. 42/78 is a represented appeal of Murari accused, whereas, D. B. Cr. Appeal No. 43/78 has been preferred by him through the jail authorities. 5. We have heard the learned public prosecutor and also prosecutor the Judgment of the learned Sessions Judge as well as the entire record of the trial court. We have also gone through the evidence in detail adduced by the prosecution in support of their case, and scrutinised the statements of the prosecution witnesses. The learned Sessions Judge, in his judgment, has discussed the entire evidence in detail, and arrived at the conclusion that this is a case where it cannot be said that there was any premeditation for committing murder of Sheokaran (deceased.) 6. No doubt, all the accused persons who have been charge-sheeted under section 147, IPC, had formed an unlawful assembly, but, there is no iota of evidence to prove that the accused persons had conspired prior to the alleged occurrence. There is no evidence on record to support and prove that the unlawful assembly was formed by these accused persons. So, mere presence of more than five persons, does not appear to have formed an unlawful assembly. We, therefore, do not agree with the finding of the learned Sessions Judge that a case under section 147, IPC is made out against the accused persons. Hence, their conviction under this section, is unfounded and not maintainable. 7. There is no dispute with regard to the fact that some quarrel had taken place, in which, both the parties received injuries. From the doctors statement, it is proved that six of the accused persons had received injuries. Two accused persons received grievous injuries from the side of the complainant. A number of persons received injuries and they were quite large in number. So, from this fact that both the parties received injuries, it is proved that some quarrel had taken place, and both the sides inflicted injuries to each other. So, the presence of the accused persons at the place of occurrence, who were injured, cannot be denied. But, from the evidence, it is established that the dispute or quarrel had taken place all of a sudden without any sort of pre-meditation, in which, both the parties received injuries. So, the presence of the accused persons at the place of occurrence, who were injured, cannot be denied. But, from the evidence, it is established that the dispute or quarrel had taken place all of a sudden without any sort of pre-meditation, in which, both the parties received injuries. To attract the provisions of S. 300, IPC, one has to prove that the accused persons gave blows to the person (deceased) with the intention of causing his death, or with the intention of causing such bodily injury as the offender knew to be likely to cause death, or with the intention of causing such bodily injury which was intended to be inflicted was sufficient in the ordinary course of nature to cause death, or, the person committing the act knew that it was so imminently dangerous that it must, in all probability, cause death or such bodily injury as was likely to cause death and committed such act without any excuse for incurring the risk of causing death, or. 8. Keeping in mind, all the essential ingredients and going through the entire record of the case, we are of the opinion that the present case is not covered by either of above categories. No doubt, death has occurred, but, it was in a sudden fight, in which, both the sides received injuries, and that sudden fight was without any pre-meditation. It cannot be said that the accused persons in that fight took undue advantage or acted in a cruel unusual manner. Therefore, the present case is squarely covered by Exception- 4 to S. 300, IPC, and the learned Sessions Judge has correctly held that the case under section 302, is not made out against the accused persons. 9. A person is found guilty under section 301, Part I, IPC, if the act done by him by which death is caused, is done with the intention of causing death or of causing such bodily injury as is likely to cause death. Part. II of S. 304, IPC says that if the act is done with the knowledge that it is likely to cause death, but without intention of causing death, or to cause such bodily injury as is likely to cause death. So, the present case is completely covered under section 304, part-II IPC. The learned Sessions Judge, has correctly held the accused guilty under this section. 10. So, the present case is completely covered under section 304, part-II IPC. The learned Sessions Judge, has correctly held the accused guilty under this section. 10. A case under section 325, IPC, is also made out against accused Girdhari and Bhanwarlal. 11. In the result, we find no force in all the three appeals, and they are dismissed. Accused Girdhari and Bhanwarlal are convicted of offence under section 325, IPC, and each of them is sentenced to 5 years rigorous imprisonment and a fine of Rs. 500/- each. In default of payment of fine, they each shall undergo 3 months simple imprisonment each. 12. The conviction and the sentence of the accused persons under section 147, IPC, are set aside. 13. The convictions and the sentences awarded to appellant Murari under sections 304, Part. II & 325, IPC. 323, IPC, are maintained. He is on bail. The learned Sessions Judge, Jhunjhunu, is directed to issue warrant of arrest against him and send him to jail to undergo the sentence awarded to him by the learned trial court and confirmed by this Court. The learned Sessions Judge would also section that accused. Murari should get benefit of S. 428. Cr. P. C. and if he has already suffered the period of sentence awarded to him by the trial court, he should not be arrested. 14. Certified copy of this judgment should be issued to the accused only after production of surrender certificate from the authorities concerned.order accordingly. *******