ORDER 1. The present appeal arises out of the judgment and order dated 25.07.2008 passed by the High Court of Judicature at Patna upholding the sentence imposed by the learned Sessions Judge upon the appellants and the co-accused Binod Prasad, for the offences punishable under Section 302 read with Section 34, IPC. 2. The Special Leave Petition, qua Binod Prasad was dismissed on 08.05.2009. Thus, the present appeal is on behalf of two other convicts. 3. Fir Exh. P-4 was lodged on the basis of statement of PW7- Govind Kumar, son of the deceased. He stated that his father Dwarika Prasad has altercation with Manoj Prasad on 26.12.1985 at about 6 AM. His father asked Manoj Prasad not to take water through his fields. This infuriated Manoj Prasad. He left his adjoining fields and came back along with two of his brothers at 8.30 AM. His brother Binod Prasad was armed with a country-made pistol whereas Manoj Prasad and his other brother Chandrashekhar Kumar were armed with lathies. 4. It was Binod Prasad who fired the fatal shot upon the deceased whereas the allegation against the appellants Manoj Prasad and Chandrashekhar Kumar is that they had given beatings to the deceased with lathies. 5. Pw 5 Dr. Abdul Wahab has conducted the post mortem on the dead body of Dwarika Prasad at 4.40 PM on 26.12.1985. He has found the following injuries: "1. One punctured " wound with inverted margin 1 inches below right nipple with totto all round. 2. One puncture lacerated wound with averted margin inch round on the back of chest below the lower margin of right scapular. These two injuries according to the doctor were communicating injury no. 1 being of entrance and injury no. 2 was exit. 3. Bruise 2" x 1" below back of right elbow. 4. Bruise 2" x 1" below left elbow. 5. Bruise 3" x 1" on outer side of left arm. 6. Bruise 2" x 1" above back of left waist. 7. Abrasion 1" x " above right knee in the front. On dissection right chest cavity was found contained one of clotted blood with right lung torn and punctured at the anterior mammary line (below right-nipple) Right lobe of the lever was punctured and torn. Diaphragm was punctured in right spleen pipe and stomach was empty. 7. Abrasion 1" x " above right knee in the front. On dissection right chest cavity was found contained one of clotted blood with right lung torn and punctured at the anterior mammary line (below right-nipple) Right lobe of the lever was punctured and torn. Diaphragm was punctured in right spleen pipe and stomach was empty. In the opinion of the doctor the cause of death was shock and haemorrhage. From injury no. 1 and 2 caused by fire arm. Time elapsed since death was about 12 hours. The post- mortem report is Ext. 2." 6. Thus, from the Post mortem Report, the Injury Nos. 1 and 2 were caused by a bullet fired by Binod Prasad, whereas injury Nos. 3, 4, 5 and 6 were the injuries received by the lathi blows. 7. The argument of learned counsel for the appellants is that the incident happened due to sudden provocation and without any premeditation in sudden fight, therefore, appellants are entitled to get the benefit of Exception 4 of Section 300 IPC. Thus, the appellants who were not armed with deadly weapons nor the injuries were caused on the vital part of the body, therefore, their conviction under Section 302 IPC is not made out. They can at best be \convicted for an offence under Section 304 Part II of the IPC. 8. The prosecution has examined Govind PW 7, Shyamlal Mahto PW 4 and Mathura Prasad son of the deceased informant as PW 1. They have supported the prosecution story that the altercation took place at about 6.00 AM between the deceased and Manoj Prasad over the right to take water for the purpose of irrigation of the fields. The infuriated Manoj Prasad has gone back to his home and came back with two of his brothers, one armed with country-made pistol whereas Manoj Prasad and Chandrashekhar Kumar armed with lathies. 9. In these circumstances, it cannot be said that the incident happened at the spur of the moment without any premeditation in sudden fight. The accused- Manoj Prasad has gone back home and all of three accused came together, one armed with a fire arm and two others with lathies. Therefore, benefit of Exception 4 of Section 300 IPC cannot be granted to the appellants. 10. The appellants were part of the assailants, who came together armed with fire arm and lathies. Thus, they shared common intention. Therefore, benefit of Exception 4 of Section 300 IPC cannot be granted to the appellants. 10. The appellants were part of the assailants, who came together armed with fire arm and lathies. Thus, they shared common intention. Therefore, the case of the appellants Manoj Prasad and Chandrashekhar Kumar cannot be segregated with that of Binod Prasad who had given fatal shot from his country made pistol. 11. In view thereof, we find no merit in the appeal. Hence the same is dismissed.