JUDGMENT : Shree Chandrashekhar, J. Twenty-one accused persons faced the trial for committing murder of Mahadeo Bhagat and they were convicted for the offence under section 302/149 IPC; some of the accused persons were convicted also under section 147,148,342 and 452/149 IPC. 2. This batch of criminal appeals were taken up for hearing on 13th May, 2019 by a coordinate bench of this Court. 3. On 12.6.2019, the following order was passed by this Court: “This batch of criminal appeals was admitted for hearing vide order dated 22.11.2006. 2. It is stated that during pendency of these criminal appeals seven accused persons out of eighteen who have preferred criminal appeals against the judgment in Session Trial No. 359 of 2002 have died and, accordingly, criminal appeal on their behalf has abated. 3. This batch of criminal appeals has been listed on as many as 10 occasions. 4. On 13.05.2019, when the matter was heard by a coordinate Bench of this Court it was noticed that three accused persons out of twenty-one, who were put on trial have remained absconding and judgment was delivered in their absence. In the aforesaid fact, this Court has passed the following order : “When these matters were taken up for final hearing, we found from the impugned Judgment passed by the Trial Court below, that in all 21 accused had faced the trail till end, but three of them, namely, Jita Oraon, Anil Oraon, and Sukra Oraon @ Suka Oraon had not surrendered on the date of Judgment. The Judgment of conviction was passed against them in their absence, their bail bonds were cancelled, and non-bailable warrants and the processes under Sections 82 and 83 of Cr.P.C., were also issued against them. We inquired from the Office, whether these accused have been subsequently sentenced and have filed any appeal in this Court, and we are informed that no appeal has been filed by these accused. This clearly shows that these accused persons are still absconding. Let a report be called for from Sr. S.P., Ranchi, about the execution of the non-bailable warrants and the processes issued against the accused Jita Oraon, Anil Oraon, and Sukra Oraon @ Suka Oraon, by the Trial Court below on 21st September 2006 itself, in S.T. No.359 of 2002. We expect that the report from the Sr. Let a report be called for from Sr. S.P., Ranchi, about the execution of the non-bailable warrants and the processes issued against the accused Jita Oraon, Anil Oraon, and Sukra Oraon @ Suka Oraon, by the Trial Court below on 21st September 2006 itself, in S.T. No.359 of 2002. We expect that the report from the Sr. S. P., Ranchi, shall be received by the reopening of the Court after summer vacations. Put up the matter on 12th June 2019, on which date, the report of the Sr. S. P., Ranchi, should be there on record to show whether the non-bailable warrants were executed against them or not. If in the meantime, those three accused are apprehended, they must be produced in the Trial Court below for passing the sentence against them. Let a copy of the impugned Judgment be also sent to the Sr.S.P., Ranchi, along with a copy of this order, for the needful. Put up the matter on the date fixed.” 5. A report as directed by this Court has not been submitted by the Senior Superintendent of Police, Ranchi. 6. The office note indicates that a copy of the order dated 13.05.2019 was sent to the Senior Superintendent of Police, Ranchi. 7. Prima-facie, we are of the opinion that a proceeding under the Contempt of Courts Act, 1971 needs to be initiated against the Senior Superintendent of Police, Ranchi, however, before proceeding further in the matter we direct Mr. Satish Kumar Keshri, the learned APP to communicate a copy of the order dated 13.05.2019 and this order to the Director General of Police, Government of Jharkhand. 8. The Director General of Police, Government of Jharkhand is requested to look into the matter why the Court's orders are not complied by the officers of the department. 9. Post the matter on 18.06.2019. 10. Let a copy of the order be given to the learned APP. 11. Let a copy of the order be transmitted to the Director General of Police, Government of Jharkhand through 'FAX'.” 4. In compliance of the order dated 12.6.2019, an affidavit by the Senior Superintendent of Police, Ranchi has been sworn. 5. Mr. Satish Kumar Keshri, the learned A.P.P. tenders copies of the affidavit dated 17.6.2019. 6. Taken on record. 7. 11. Let a copy of the order be transmitted to the Director General of Police, Government of Jharkhand through 'FAX'.” 4. In compliance of the order dated 12.6.2019, an affidavit by the Senior Superintendent of Police, Ranchi has been sworn. 5. Mr. Satish Kumar Keshri, the learned A.P.P. tenders copies of the affidavit dated 17.6.2019. 6. Taken on record. 7. It is stated that out of the three accused persons who have also suffered the judgment of conviction under section 302/149 IPC and the order of sentence of R.I. for life, but absconded on the date of judgment, namely, Anil Oraon son of Shani Oraon and Sukra Oraon @ Suka Oraon son of late Bhikhu Oraon have been arrested and one namely, Jitu Mahto @ Jitu Oraon has died. 8. The Secretary, Jharkhand State Legal Services Authority is directed to extend legal aid to the aforesaid two accused persons, if they desire. 9. This batch of criminal appeals have been preferred by eighteen accused- appellants. It has come on record that seven appellants; appellant No.2 - Sawana Oraon and the appellant No.3- Buranga Oraon in Cr. Appeal (D.B.) No. 1466 of 2006; appellant No.1- Etwa Oraon in Cr. Appeal (D.B.) No. 1497 of 2006; appellant No.1- Suka Oraon and the appellant No. 4- Bhukhala Oraon in Cr. Appeal (D.B.) No. 1541 of 2006 and the appellant Nos. 1 and 2 namely, Pardesia Oraon and Mahavir Oraon in Cr.Appeal (D.B.) No. 1420 of 2006, have passed away during pendency of these criminal appeals and, accordingly, criminal appeals on their behalf have abated. 10. Now, criminal appeal (D.B.) No. 1466 of 2006 survives qua appellant Nos. 1- Luka Oraon and appellant No.4-Mahabir Oraon; Criminal Appeal (D.B.) No. 1497 of 2006 qua appellant No.2- Birsa Oraon; appellant No.3-Baiju Oraon and appellant No.4-Kallu Oraon; Criminal Appeal (D.B.) No.1541 of 2006 qua appellant No.2-Somra Oraon, appellant No.3-Budhwa Oraon and appellant No.5-Panchu Oraon; Criminal Appeal (DB) No. 1420 of 2006 qua appellant no.3- Panchu Oraon; Criminal Appeal (DB) No. 1619 of 2006 qua Panchu Oraon and Criminal Appeal (DB) No. 1571 of 2006 qua Chummu Oraon @ Chuman Oraon. 11. All the six criminal appeals on board arise from a common judgment of conviction under section 147,148,342 and 452/149 and 302/149 of the Indian Penal Code. These criminal appeals have been heard together and are disposed of by this common order. 12. 11. All the six criminal appeals on board arise from a common judgment of conviction under section 147,148,342 and 452/149 and 302/149 of the Indian Penal Code. These criminal appeals have been heard together and are disposed of by this common order. 12. The prosecution case has been narrated by the informant namely, Lachho Orain in her fardbeyan recorded at 20:30 p.m. on 13th August, 2001 at village Narkopi. The informant has stated that on 13th August, 2001, a meeting of the villagers was convened at Adavasi Akhara at about 7 a.m. in connection to theft of a Trisul from Devi Mandap of the village. The meeting continued for about two hours and thereafter the villagers proceeded for Jhakra Tarnha (SARNA ASTHAL). It was decided there to put eye-band on the villagers who would detect the thief who has stolen Trisul from Devi Mandap. The informant has stated that the accused Bhukhala Pahan put an eye-band on Bhoma Oraon, Etwa son of Budhuwa Oraon and Anil Oraon son of Shani Oraon but none of them could move further, however, Sawna Oraon son of Shani Oraon came towards the house of the informant. It is stated that at about 2.00 p.m. villagers gathered near the house of the informant and the accused persons entered her house in search of Trisul. When they did not find Trisul in the house of the informant, they came out and started digging the land around the house of the informant. Thereafter, the accused persons took the husband of the informant to the house of accused Somra Oraon and asked him about the Trisul. They asked him to search the Trisul, however, Mahadeo Oraon, husband of the informant, repeatedly denied that he has stolen the Trisul. When the villagers did not heed to his request, husband of the informant offered to buy a Trisul for installing in the Devi Mandap. However, the accused persons assaulted him by Tangi and Knife and thereafter she brought her husband home. The informant has stated that she locked her husband in a room, however, the accused persons came there and after breaking open the lock of the room took him to Village Akhara and assaulted him by Tangi, Lathi, Balua and Knife. However, the accused persons assaulted him by Tangi and Knife and thereafter she brought her husband home. The informant has stated that she locked her husband in a room, however, the accused persons came there and after breaking open the lock of the room took him to Village Akhara and assaulted him by Tangi, Lathi, Balua and Knife. The informant has claimed that the accused Panchu Oraon, Chummu Oraon and Budhwa Oraon were armed with Tangi, accused Sukar Oraon had a knife and the accused Somra Oraon was holding a Balua. The other accused persons were holding lathi. She has stated that assault on her husband started at about 3.30 p.m. and he was killed at about 4 p.m. She has further stated that there were 10-12 other villagers alongwith the above-named accused persons. 13. On the basis of the fardbeyan of the informant, Bero P.S. Case No. 48 of 2001 against 21 named accused persons was registered under sections 147, 148, 149, 342, 452 and 302 IPC. 14. After the investigation, charge-sheet was submitted against all the accused persons and common charges under sections 147, 148, 342, 452/149 and 302/149 IPC were framed against them. A charge under section 3/4 of Prevention of Witch (Daain) Practice Act, 1999 was also framed against the accused persons. 15. During the trial the prosecution has examined 8 witnesses; the informant, namely, Lachho Orain is P.W. 2 and her two daughters were examined as P.W. 3 and P.W. 5. The son of the deceased, namely, Jubi Oraon is P.W. 4 and the doctor who has conducted post-mortem examination over the dead-body of Mahadeo Bhagat is P.W. 1. The Investigating Officer has examined himself as P.W. 6. Other two witnesses have not supported the prosecution case; on the request of the prosecution, P.W. 8 has been declared hostile. 16. The accused-Sukka Oraon has taken a plea of alibi. In support of his plea, he has examined two witnesses. D.W. 1, namely, Jaddu Singh and D.W. 2, namely, Sukra Oraon have stated that on 13.08.2001 at the time of occurrence the accused Sukka Oraon was with them in the market. 17. During the trial, the accused persons have taken a stand that the deceased, namely, Mahadeo Bhagat was an informer of MCC and he was killed by its members. 18. 17. During the trial, the accused persons have taken a stand that the deceased, namely, Mahadeo Bhagat was an informer of MCC and he was killed by its members. 18. On the basis of the evidences laid before him, the learned Additional Judicial Commissioner No. XVII, Ranchi has held that the prosecution has proved the charge against all the accused persons under section 302/149 IPC. Five accused persons, namely, Panchu Oraon, Budhwa Oraon, Chummu Oraon, Sukar Oraon and Somra were convicted under section 148 IPC and rest sixteen of them were convicted under section 147 IPC. The accused Sukar (Sukra), Panchu, Chummu Oraon, Anil Oraon, Budhwa Oraon and Sukka Oraon were convicted under section 342 IPC and all the twenty-one accused persons were convicted under section 452/149 IPC. 19. All the eighteen convicts, who have preferred criminal appeals, were sentenced to undergo R.I. for life and fine of Rs. 2000/- each for the offence punishable under section 302/149 IPC and R.I. for 7 years under section 452/149 IPC. The appellant- Panchu Oraon, Chummu Oraon and Sukka Oraon were sentenced to R.I. for one year under section 342 IPC and they along with Somra Oraon and Budhwa Oraon have been sentenced to R.I. for one year under section 148 IPC. Remaining 14 appellants have been sentenced to undergo Simple Imprisonment for six months under section 147 IPC. 20. Mr. Nilesh Kumar, learned counsel for the appellants has made two-fold submissions; (i) conviction of the appellants with the aid of section 149 IPC is not sustainable as the prosecution has failed to establish common object of all to cause death of Mahadeo Bhagat, and (ii) accepting the prosecution’s evidence on its face the appellant-Chummu Oraon and the appellant-Panchu Oraon are entitled for the benefit of Exception-4 to Section 300 IPC. To fortify his submissions, Mr. Nilesh Kumar, the learned counsel for the appellant has relied on the decisions in “Atul Thakur Vs. State of Himachal Pradesh and others” reported in (2018)2 SCC 496 and “Lavghanbhai Devjibhai Vasava Vs. State of Gujarat” reported in (2018) 4 SCC 329 . 21. In support of the impugned judgment passed in S.T. No. 359 of 2002, Mr. Nilesh Kumar, the learned counsel for the appellant has relied on the decisions in “Atul Thakur Vs. State of Himachal Pradesh and others” reported in (2018)2 SCC 496 and “Lavghanbhai Devjibhai Vasava Vs. State of Gujarat” reported in (2018) 4 SCC 329 . 21. In support of the impugned judgment passed in S.T. No. 359 of 2002, Mr. Satish Kumar Keshri, learned APP has contended that the evidence of P.W. 2, P.W. 3 and P.W. 5 has remained unimpeached and the manner in which Mahadeo Bhagat has been done to death leaves no manner of doubt that all the accused persons shared common object to kill him. It is contended that the weapon held by the accused persons and assault on Mahadeo Bhagat in-spite of his repeated request to leave him would establish that he was killed in prosecution of the common object of all. The learned APP has relied on the decisions in “Waman and others Vs. State of Maharashtra” reported in (2011) 7 SCC 295 , ( para 14 to 20), 2016 ACR 132, “Neel Kumar @ Anil Kumar Vs. State of Haryana” reported in 2012(3)JLJR 135(SC) and “Sucha Singh and Another Vs. State of Punjab” reported in (2003) 7 SCC 643 . 22. The prosecution has examined three eye witnesses, namely, Lachho Orain-P.W.2, Sivini Orain -P.W. 3 and Panchi Orain-P.W. 5. On his own saying, Jubi Oraon-P.W. 4, son of the deceased, is not an eye witness. He has been examined on other aspect of the case. The story narrated by the informant splits the occurrence in two parts; in the first part Mahadeo Bhagat was assaulted by Panchu and Sukra by Tangi on his head and hand and in the second part Chummu, Panchu and Budhwa have assaulted him by Tangi. The other two witnesses who are daughters of the deceased have also spoken about assault on their father by Panchu, Chummu, Budhwa and Sukra. There is some inconsistency in their evidence in respect to manner of occurrence, name of the accused with specific allegation of assault, but these witnesses have not alleged any specific overt-act by other appellants. 23. Out of 18 appellants there are 11 who are surviving and out of them specific allegation of assault is against Chummu Oraon @ Chuman Oraon who is the appellant in Cr. Appeal (DB) No. 1571 of 2006 and Panchu Oraon who is the appellant in Cr. 23. Out of 18 appellants there are 11 who are surviving and out of them specific allegation of assault is against Chummu Oraon @ Chuman Oraon who is the appellant in Cr. Appeal (DB) No. 1571 of 2006 and Panchu Oraon who is the appellant in Cr. Appeal (DB) No. 1619 of 2006. 24. Section 141 of the Indian Penal Code defines unlawful assembly. It talks of common object of five or more persons which may be designated as “unlawful assembly”. Section 149 IPC provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence is a member of the assembly, is guilty of that offence. Long back, in “Masalti Vs. The State of U.P.” reported in AIR (1965) SC 202, it has been held that to rope in other members of an unlawful assembly for the act of others, it is not necessary that others also must have committed an illegal act. In “Masalti” the Supreme Court has held, thus: 17. “………….it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly in fact, S. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly; is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. 25. But then, the prosecution must establish that all of them have shared a common object and the act alleged has been committed to accomplish common object of the unlawful assembly. 25. But then, the prosecution must establish that all of them have shared a common object and the act alleged has been committed to accomplish common object of the unlawful assembly. By now, it is widely accepted that every member in a crowed by his mere presence there does not become member of an unlawful assembly. A by-stander or a person who out of curiosity comes near an unlawful assembly does not become a member of the unlawful assembly. In “Bhagwan Singh & Ors. Vs. State of M.P.” reported in (2002) 4 SCC 85 , the Supreme Court has held as under: “9. Common object, as contemplated by Section 149 of the Indian Penal Code, does not require prior concert or meeting of minds before the attack. Generally no direct evidence is available regarding the existence of common object which, in each case, has to be ascertained from the attending facts and circumstances. When a concerted attack is made on the victim by a large number of persons armed with deadly weapons, it is often difficult to determine the actual part played by each offender and easy to hold that such persons who attacked the victim had the common object for an offence which was known to be likely to be committed in prosecution of such an object………” 26. In the judgment in Sessions Trial No. 395 of 2002 the learned Additional Judicial Commissioner has recorded a finding that there was no theft of Trisul from Devi Mandap and there was no meeting of villagers there. Para 19 of the impugned judgment reads as under: “19. It is true that none of the eye witnesses were present in the alleged meeting at Devi Mandap or at Jhakhra wherefrom said Sawna Oraon at the command of the accused Bhukhla Pahan started moving after his eyes were closed but the conduct of the accused- which- stands disclosed subsequently when the villagers’ mob including accused persons, reached to the house of the deceased, depicted in the evidence of PWs, leave no room to entertain any doubt that there was no theft of ‘Trisul’ from Devi Mandap and there was no meeting of villagers at Devi Mandap. The factum of meeting of villagers also gets support from the evidence in paragraph 4 of P.W. 7, who appears to have been examined as prosecution witness, but tried to favour the defence. The factum of meeting of villagers also gets support from the evidence in paragraph 4 of P.W. 7, who appears to have been examined as prosecution witness, but tried to favour the defence. Circumstance which stands generated from the scrutiny of the evidence on record in totality and after separation of chaffs from grains, in the opinion of this court, leaves no room to doubt that accused persons were member of unlawful assembly. After forming unlawful assembly they held meeting at Devi Mandap. It was resolved that ‘Pahan’ of the village of ‘Jhakhra’ will close the eyes of selected person by putting a stripe of clothes on his eyes and he will give a round in the village and the man in whose house he will enter would be presumed to have committed the theft of ‘Trisul’ from Devi Mandap. It was also resolved that after detecting the thief he will be punished.” 27. This finding is apparently beyond the evidence led by the prosecution during the trial. It is the story narrated by the informant that there was a meeting of the villagers in Adivasi Akhara in connection to theft of Trisul from Devi Mandap of the village. Thereafter, the villagers proceeded for SARNA ASTHAL and there they started putting eye-band on several persons who could have led them to the thief. In such a gathering and on such evidence, it cannot be inferred that all the accused had decided to cause death of the thief and at this point they had formed common object to kill. This part of the story has been disbelieved by the learned Additional Judicial Commissioner, however, the fact remains that it was the initial story about the occurrence narrated by the informant. It is not a case set-up by the prosecution that there was no such meeting of the villagers convened at Adavasi Akhara and, in fact, the accused persons who were sent up for trial had already decided to kill Mahadeo Bhagat. In fact, the thief was not known by that time. Para 20 of the impugned judgment reads as under: “Question for consideration and decision is whether the unlawful assembly of 21 accused and others had any common object to kill the thief, when he is so detected in the manner resolved by the unlawful assembly? In fact, the thief was not known by that time. Para 20 of the impugned judgment reads as under: “Question for consideration and decision is whether the unlawful assembly of 21 accused and others had any common object to kill the thief, when he is so detected in the manner resolved by the unlawful assembly? To find out the answer of this question, let us have a look into the fard-beyan and the evidence of the eye-witnesses. In the fard-beyan allegation is that all the 21 accused entered into the house of the deceased. Searched therein but failed to find the “Trisul”. Thereafter they started spading the soil. The accused persons, also alleged that it was the deceased who committed the theft of ‘Trisul’ three years back. They took away the deceased forcibly to village-Akhra. The accused persons were not at all ready to listen any explanation of the deceased. Accused Panchu S/o Bigla and Chumnu assaulted the deceased by Tanga and Sukar assaulted by means of a knife. It is the further allegation that after said assault, deceased escaped and came to his house where his wife locked him into a room, but the accused persons again came to the house of the deceased. Broke the lock of the door and took out the deceased from the room and again brought him back to the village Akhra and was assaulted by the accused by dangerous weapons resulting into death of the deceased. Fard-beyan was recorded 8.30 p.m. i.e. just after ¾ hours of assault and death of deceased. Said description of the activities of the F.I.R. named 21 accused, indicate that none of the 21 accused at any point of time separated himself from the activities of unlawful assembly. They may not have actually participated in the actual assault but they actively participated in all other acts and activities of the unlawful assembly. They all were definitely knowing that assault by Tanga and knife and again bringing back, dragging from the house to Akhra and resuming assault by Tanga, Balua etc. by some of the members of unlawful assembly would take away the life of the deceased. In the opinion of this court, all accused remained present through out and they participated in all activities of unlawful assembly. Therefore, all the 21 accused are liable for the acts of actual assault by some of them. by some of the members of unlawful assembly would take away the life of the deceased. In the opinion of this court, all accused remained present through out and they participated in all activities of unlawful assembly. Therefore, all the 21 accused are liable for the acts of actual assault by some of them. Those accused who may not have actually put any blow of assault to the deceased, legally cannot escape criminal liability. Description in fard-beyan, as held earlier is exactly similar in the evidence of PWs 2 and 5 i.e. the two eye witnesses of the occurrence. Therefore, on the basis of above discussion, this court is satisfied to hold that common object of the unlawful assembly of 21 named accused, was nothing but to kill the deceased or there is no room to doubt that all the 21 accused knew it that in prosecution of their common object (whatsoever) the manner in which the deceased was being assaulted, the death was the sure result thereof. None of the 21 accused can escape constructive liability of murder of the deceased Mahadeo Bhagat in prosecution of the common object of the unlawful assembly of which they were active participants.” 28. The learned judge has held that none of the 21 accused persons was simple spectator and they have actively participated in the activities of unlawful assembly knowing the consequence of the assault. On this issue, we find that the prosecution has not led any evidence to establish that at the initial point when a meeting was convened some or all the accused persons were armed. Search for the thief had led the villagers to the house of the deceased and there also only five of them have actively participated. Except the appellants namely, Chummu Oraon, Budhuwa Oraon, Sukra Oraon, Somra Oraon and Sukka Oraon, the prosecution witnesses have not made any specific allegation of assault upon Mahadeo Bhagat by others. True, PW-2, PW-3 and PW-5 have made statement that all the accused persons assaulted Mahadeo Bhagat, but in a mob of villagers when there is no specific allegation of any overt act against the other persons chances of such persons being by-standers cannot be ruled out. It is a seminal principle in criminal jurisprudence that the prosecution must establish its case beyond all shadow of reasonable doubt, that is, to the hilt. It is a seminal principle in criminal jurisprudence that the prosecution must establish its case beyond all shadow of reasonable doubt, that is, to the hilt. Having examined the evidences led by the prosecution during the trial of Sessions Trial No. 359 of 2002, we are of the opinion that the prosecution has failed to establish common object of all to cause death of Mahadeo Bhagat. 29. Accordingly, conviction of the appellants, except the appellants in Cr. Appeal (DB) No. 1571 of 2006 and Cr. Appeal (DB) No. 1619 of 2006, for the offence under section 302 IPC with the aid of section 149 IPC and sentence awarded to them for the said offence are set-aside. The charge under section 452/149 IPC and under section 147,148 and 342 IPC framed against them are also not established and, accordingly, their conviction and sentence for the said offences are set-aside. 30. In the result, the conviction and sentence of the above appellants for the aforesaid offences passed in Sessions Trial no. 359 of 2002 are set-aside and they are acquitted of the charges framed against them. They are discharged from the liability of the bail-bonds furnished by them. 31. Now coming to the role played by the appellants namely, Chummu Oraon and Panchau Oraon, we find that the prosecution has led evidence through PW-2, 3 and 5 that they have assaulted Mahadeo Bhagat with Tangi. Dr. R.S.Sahu, PW-1, who has conducted post-mortem examination over the dead body, has found the following injuries on the dead body of Mahadeo Bhagat: “(i) 7”x3 cm x bone deep on left chest front adjacent to midline cutting sternum, 4th rib, pericardium and heart. (ii) 5x2 c.m. x bone deep right occipital region of head cutting the underline bone and brain matter. (iii) 2x2” x bone deep on right temporal region of head cutting the underline bone and brain matter. (iv) 5x2 cm x soft tissues 7x1 cm x soft tissues on the back of left neck. Lacerated Wound: (i) 3x1 cm x bone deep on right forearm back with fracture of right ulna. (ii) 4x1 cm x scalp deep and 3x1 cm x scalp deep on frontal region of head.” 32. In the opinion of the doctor all the injuries were ante-mortem and caused by sharp-cutting heavy weapon, except lacerated wounds which were caused by hard and blunt substance. 33. (ii) 4x1 cm x scalp deep and 3x1 cm x scalp deep on frontal region of head.” 32. In the opinion of the doctor all the injuries were ante-mortem and caused by sharp-cutting heavy weapon, except lacerated wounds which were caused by hard and blunt substance. 33. On the above evidence, one of the arguments raised on behalf of these appellants is that their act as established through the prosecution evidence brings their case within the purview of Exception-4 to Section 300. 34. Exception-4 to Section 300 provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight. Exception-4 to Section 300 IPC reads as under: “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.” 35. One of the essential ingredients for bringing the act of an accused which has caused death within Exception-4 is that it happened on a sudden provocation. The defence set-up by the accused- appellants was not that it was a sudden fight in which Mahadeo Bhagat has suffered fatal blows and the evidences as led by the prosecution also do not indicate that. One fact which clearly disentitles these two appellants to seek protection under Excpetion-4 is that in the second after breaking open the lock Mahadeo Bhagat was dragged out from his house and assaulted by these appellants. Accordingly, we hold that these two appellants namely, Chummu Oraon and Panchau Oraon are not entitled for the benefit under Exception-4 to Section 300 IPC. 36. However, the evidences led through wife and the daughters of Mahadeo Bhagat, the deceased, do not establish specific assault on Mahadeo Bhagat by these two appellants. The prosecution has not proved which appellant has inflicted fatal blow on Mahadeo Bhagat. In this context, it is also pertinent to record that no charge under section 302 IPC simpliciter has been framed against any of these two appellants. Wife of the deceased has named Panchu and Sukar who have assaulted Mahadeo Bhagat with Tangi on his hand and head. She has further stated that Chummu, Panchu and Bhudhwa have assaulted Mahadeo Bhagat with Tangi. Wife of the deceased has named Panchu and Sukar who have assaulted Mahadeo Bhagat with Tangi on his hand and head. She has further stated that Chummu, Panchu and Bhudhwa have assaulted Mahadeo Bhagat with Tangi. PW-2 has, however, given a general statement regarding assault on Mahadeo Bhagat by Chummu and Bhudhwa with Tangi, Sukar with knife and Somra with Balua. However, no injury on the stomach of Mahadeo Bhagat has been found by PW-1. She has also not specifically stated whether Panchu was holding any weapon and she has not made a specific allegation of assault against Chummu. PW-5 has named five persons who have assaulted her father and she has alleged that Chummu, Panchu and Bhudhwa were holding Tangi, however, she has also failed to identify specific assault by the accused persons on the body of her father. No doubt, in a large crowd it is not possible for the prosecution witnesses to describe the incident with exactitude, but then, for convicting an accused for the offence of murder the prosecution must prove common intention or common object of all or at least establish which injury has proved fatal. Except these two appellants, there were others also who were armed with sharp-cutting weapon. In the opinion of PW-1, death was caused due to injuries caused to the deceased. The doctor has not given a categoric opinion which out of the six injuries found on the body of Mahadeo Bhagat was sufficient to cause death in ordinary course of nature. Apparently, it was commutative effect of the injuries to Mahadeo Bhagat which has caused his death. 37. In this state of evidence, we are of the opinion that conviction of these two appellants under section 302/149 IPC is not proper and they are liable to be convicted under section 326/34 IPC, that is, for causing grievous hurt to Mahadeo Bhagat [refer, “Vijay Singh And Another Vs. State of Madhya Pradesh” reported in (2014)12 SCC 293 ]. The prosecution has succeeded in establishing that the appellants, namely, Chummu and Panchu have voluntarily caused grievous injury to Mahadeo Bhagat by dangerous weapon and, accordingly, they are convicted u/s 326/34 IPC and sentenced to R.I. for Ten years. 38. The judgment of conviction under section 302/149 IPC and the order of sentence of R.I. for life awarded to all the surviving appellants are set-aside. 39. 38. The judgment of conviction under section 302/149 IPC and the order of sentence of R.I. for life awarded to all the surviving appellants are set-aside. 39. The judgment of conviction under section 147,148,342 and 452/149 IPC and order of sentence for the aforesaid offences passed against the surviving appellants in Criminal Appeal (DB) No. 1420 of 2006, Criminal Appeal (DB) No. 1466 of 2006, Criminal Appeal (DB) No. 1497 of 2006 and Criminal Appeal (DB) No. 1541 of 2006 are set-aside. 40. Accordingly, the appellants, namely, Panchu Oraon S/o Gandru Oraon, Luka Oraon, S/o late Dhane Oraon, Mahavir Oraon, S/o Jaru Oraon, Birsa Oraon, S/o Sukru Oraon, Baiju Oraon, S/o late Thomas Oraon, Kallu Oraon, S/o late Thomar Oraon, Somra Oraon, S/o late Kadla Oraon, Budhwa Oraon, S/o Sukra Oraon and Panchu Oraon, S/o Birsi Oraon are acquitted of the charges framed against them. They stand discharged of the liability of bail bonds furnished by them. 41. Cr.Appeal (DB) No. 1420 of 2006, Criminal Appeal (DB) No. 1466 of 2006, Criminal Appeal (DB) No. 1497 of 2006 and Criminal Appeal (DB) No. 1541 of 2006 are allowed. 42. The judgment of conviction under section 148 and 342 IPC and the order of sentence for the aforesaid offences passed against the appellant in Criminal Appeal (DB) No. 1571 of 2006, namely, Chummu Oraon @ Chuman Oraon, son of late Raju Oraon and the appellant in Cr.Appeal (DB) No. 1619 of 2006, namely, Panchu Oraon son of Bigla Oraon, are affirmed, however, their conviction under section 452/149 IPC is converted into Section 452/34 IPC and they stand sentenced for the aforesaid offence to R.I. for seven years. They are further convicted under section 326/34 IPC and sentenced to R.I. for Ten years. They have served sentence of more than 13 years and, accordingly, they shall be released forthwith, if not wanted in connection with any other case. 43. Criminal Appeal (DB) No. 1571 of 2006 and Criminal Appeal (DB) No. 1619 of 2006 are partly allowed.