JUDGMENT B.A.Patil, J. - In this appeal the challenge is to the judgment of the learned II Addl. District & Sessions Judge, Haveri, sitting at Ranebennur in S.C. No. 26/2008 dated 15.03.2016 wherein accused Nos.1 to 11 are convicted for the offences punishable u/s 148, 504, 506 r/w Sec. 149 of IPC and accused No.1 was convicted for the offences punishable u/s 302 of IPC. So also accused Nos. 2, 3, 4, 5, 6, 8, 9 and 10 are convicted for the offences punishable u/s 324 r/w Sec. 149 of IPC. Accused Nos.3, 7 and 11 are Convicted for the offences punishable u/s 323 r/w Sec. 149 of IPC. Accused Nos.2 to 11 are given the benefit of Probation of Offenders' Act and are released subject to executing personal bond for a sum of Rs.50,000/- each and one surety for the likesum. Challenging the same, the appellant-accused No.1 is before this Court. 2. We have heard Smt. Manjula N. Tejasvi, learned counsel for the appellant through virtual hearing and the learned Addl. SPP Sri V.M.Banakar, for the respondent-State. 3. It is the case of the prosecution that the complainant was residing in the joint family along with his brothers and their family members. Accused Nos.1 and 4 are his neighbours. There is an open site situated in front of the house of the complainant. Admittedly the said area belongs to Sodambi Grama Panchayat. As the complainant and his family members were agriculturists they have purchased a tractor and used to park it in that area belonging to the Grama Panchayat. After some time the complainant built a temporary shed. Accused Nos.1 and 4 along with other neighbouring persons approached Sodambi Grama Panchayat with the complaint that they are facing inconvenience due to parking of the said tractor in the said shed. They also instructed the complainant and his family members to remove the said shed. In that context Grama Panchayat passed a resolution and to the said resolution one of the members of the family of the complainant has given the reply. Left with no other alternative the complainant and his family members removed the said temporary shed. But two poles fixed for putting the shed were not removed. In that light, accused Nos.1 to 11 instructed the complainant to remove the two poles left there itself. Left with no other alternative the complainant and his family members removed the said temporary shed. But two poles fixed for putting the shed were not removed. In that light, accused Nos.1 to 11 instructed the complainant to remove the two poles left there itself. But, inspite of the said request the complainant and his family members did not remove the poles of the temporary shed. In that light, on 16.01.2008 at about 8 p.m. complainant came to his house from the land and after taking the food gone to nearby shop. Initially the accused Nos.1 to 4 came to the spot and picked up quarrel with the complainant by saying that, inspite of instructions he has not removed the two poles and saying so, the accused persons removed the poles and put fire on it. Immediately the brothers of the complainant, i .e., Shivappa and Basappa Kuriger requested the accused not to burn the poles. By hearing the said words of the accused persons, the accused by constituting an unlawful assembly, assaulted Shivappa Kuriger with club and stones and even assaulted the complainant and other 2-3 family members and caused simple hurt to them and left the spot by giving life threat. Immediately the injured persons were shifted to Tiluvalli Government Hospital and after giving first aid, the injured was taken to a Hospital at Davanagere. On the way to Davanagere near Byadagi the injured Shivappa succumbed to the injuries in the vehicle itself. 4. On the basis of the said complaint, a case has been registered in Crime No. 3/2008 and thereafter investigation was conducted. After completion of the investigation, charge sheet came to be filed. On committal , the trial Court framed charges and the accused pleaded not guilty. During the trial the prosecution got examined 24 witnesses and got marked 41 documents and also 14 material objects. During the course of cross-examination of PWs3 and 6 the accused got marked Exs.D1 and D2. Thereafter the statement of the accused was recorded by putting incriminating material as against them but they denied the same, after hearing both the parties, the impugned judgment came to be passed. 5. The main grounds urged by the learned counsel for the appellant are that the judgment is against the principles of basic criminal jurisprudence. Thereafter the statement of the accused was recorded by putting incriminating material as against them but they denied the same, after hearing both the parties, the impugned judgment came to be passed. 5. The main grounds urged by the learned counsel for the appellant are that the judgment is against the principles of basic criminal jurisprudence. Though there is no consistency in the evidence and unbelievable material, the trial Court relied upon such evidence and has convicted the accused. 6. It is her further submission that, though the prosecution got examined the eyewitnesses they are not actually the eyewitnesses and it is only PW1 who was present, the other witnesses have been concocted and cooked up only to suit the case of the prosecution. Nowhere the evidence discloses the fact that the accused persons formed themselves into an unlawful assembly and armed with deadly weapons and were having common object to commit murder of the deceased Shivappa. Under such circumstances, the accused persons ought not to have been convicted for the offence punishable u/s 149 of the IPC. 7. She further submitted that, when on similar evidence the other accused persons have been convicted and benefit of Probation of Offenders' Act has been given, the same benefit ought to have been given to the appellant. There is suspicion about the time of the incident, there is delay in filing the complaint, all these aspects have been ignored by the learned trial Judge and he has erroneously convicted the accused. Further, the Gram Panchayat, Sodambi passed a resolution to remove the two poles and inspite of that, the complainant and his family members have not removed and taking the said situation, a false complaint has been registered against accused. 8. It is her further contention that the evidence on record does not disclose that the present appellant-accused was having premeditation or intention to cause the death of the deceased Shivappa. He assaulted the deceased once by taking a stick fallen there on the ground and he has not carried any deadly weapons along with him. I f really he was intended to commit the murder, then under such circumstances he would have carried the lethal weapon and would have assaulted many a times. The prosecution has utterly failed to prove as to who has caused the other injuries on the deceased. I f really he was intended to commit the murder, then under such circumstances he would have carried the lethal weapon and would have assaulted many a times. The prosecution has utterly failed to prove as to who has caused the other injuries on the deceased. When a group of persons has gathered and in that commotion if somebody had assaulted, under such circumstances, the benefit of doubt should have been given to the accused that too when the independent witnesses have not supported the case of the prosecution. There is a doubt with regard to sufficiency of light and even the evidence of PW19 will also not substantiate the said fact. I f the alleged incident had taken place as contended by PWs 2 and 3 they would have tried to intervene and pacify the quarrel. In that light, their presence itselfis doubtful. 9. She has further submitted that the appellant-accused was not having any intention to cause death and even the injured has not sustained any serious injuries. The accused took the wooden piece lying at the place of the incident and in a spur of moment assaulted the deceased in the said scuff le. When that being the case, the trial Court ought not to have convicted the appellant-accused u/s 302 of IPC and at least the trial Court could have considered the case of the appellant-accused u/s 304 Part I or Part II of the IPC. 10. In order to substantiate her contention, learned counsel has relied upon the decisions of the Hon'ble Supreme Court in the case of Asraf Ali V. State of Assam, (2008) 16 SCC 328 ; so also Pratap Singh Alias Pikki V. State of Uttarakhand, (2019) 7 SCC 424 ; and the case in The State of Madhya Pradesh V. Suresh arising out of Criminal Appeal No. 319 of 2019 (Arising out of SLP (Crl.) No. 1837 of 2015). On these grounds she prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence. 11. Per contra, learned Addl. SPP vehemently argued and submitted that, there are injured eyewitnesses who have clearly deposed with regard to the overt acts of the accused and their evidence is corresponding to the injuries sustained by the deceased. 11. Per contra, learned Addl. SPP vehemently argued and submitted that, there are injured eyewitnesses who have clearly deposed with regard to the overt acts of the accused and their evidence is corresponding to the injuries sustained by the deceased. It is his further submission that the trial Court by relying upon the evidence of PWs 1, 2, 4, 3 and 13 who are the eyewitnesses has come to a right conclusion and has rightly convicted the accused. It is his further submission that though there is delay in filing the complaint, the complainant and others have given priority to the injured to get him treated and after getting him treated at Government Hospital and they also got treatment then thereafter the complaint was registered on 17.01.2008 at about 6.30 p.m. In that light, there is proper explanation and there is no delay at allin filing the complaint. He further submits that for having given priority for the treatment, delay has to be ignored. In that light, he relied upon the decision reported in (2009) 3 Crimes 333 (SC). It is his further submission that, if the delay is not going to throw light with regard to deliberations and discussions to falsely implicate the accused, under such circumstances delay cannot be considered to be fatal to the case of the prosecution. In that light, he submitted that the contention of the learned counsel for the appellant is not acceptable. 12. It is his further submission that the spot sketch Ex.P.22 clearly goes to show that the alleged incident has been seen in the street light and there was sufficient light which enabled the eyewitnesses to see the incident. It is his further submission that the trial Court after taking into consideration the factual matrix of the case on hand, has come to the right conclusion and has rightly convicted accused No.1. Further, there is no sufficient evidence to bring the case under Section 304 part II of IPC. On these grounds he prayed to dismiss the appeal by confirming the judgment of the trial Court. 13. We have carefully and cautiously gone through the submissions of the learned counsel appearing for the respective parties and perused the records. 14. The prosecution in order to establish its case got examined 24 witnesses. On these grounds he prayed to dismiss the appeal by confirming the judgment of the trial Court. 13. We have carefully and cautiously gone through the submissions of the learned counsel appearing for the respective parties and perused the records. 14. The prosecution in order to establish its case got examined 24 witnesses. PWs 1 to 11 are the eyewitnesses, among them PWs 7 to 11 have not supported the case of the prosecution and were treated as hostile. PW12 is the pancha to spot mahazar and seizure mahazar drawn as per Ex.P.5 and Ex.P.18. PW13 is an eyewitness. PW15 is the Engineer who has prepared the sketch as per Ex.P.27. PW16 is the Head Constable who carried the dead body for postmortem and after the postmortem he has handed over the dead body to the relatives of the deceased. PW17 is the Police Constable who is the carrier of the FIR to the jurisdictional Court as per Ex.P.25. PW18 is the Doctor who has conducted autopsy over the dead body and issued postmortem report as per Ex.P.26. PW19 is the Section Officer of the KEB who has issued certificate as per Ex.P.27 to the effect that at the time of the alleged incident there was no interruption in the electricity supply in the said area. PW20 is the Doctor who examined the injured witnesses and has issued wound certificate as per Ex.P.29 to P.31. PW21 is the Officer of the Grama Panchayat who has deposed with regard to passing of the resolution as per Ex.P.36 for removal of the temporary shed by the complainant and his family members. PW22 is the ASI who received the complaint as per Ex.P.1 and issued FIR as per Ex.P.37. PW23 is the PSI who, on receipt of the information that there was a galata in the village, immediately came to the Police Station and thereafter along with his staff went to the Hospital, where he came to know that all the injured have been sent to Davanagere Hospital for further treatment, later he went to the spot and conducted the further investigation. PW24 is the CPI who investigated the case and filed the charge sheet as against the accused persons. 15. PW24 is the CPI who investigated the case and filed the charge sheet as against the accused persons. 15. Though it is contended by the learned counsel for accused no.1-appellant that, no such incident has taken place as alleged by the prosecution and the accused persons have been falsely implicated, it is not in dispute that the accused Nos.2 to 11 were also convicted for the alleged offences and they were extended the benefit of Probation of Offenders' Act. It is also an admitted fact that, neither the said accused person nor the State has preferred any appeal against the finding given in the impugned judgment. 16. We have gone through the evidence of the eyewitnesses who have categorically deposed that the deceased came from the field and after finishing his dinner went outside at about 8.15 p.m. by the side of his house to a shop to consume Pan masala/ betelnut. At that time, the accused persons by constituting an unlawful assembly came there by abusing in filthy language and removed the poles. Even inspite of his resistance accused No.1 assaulted on the head of the deceased, as a result of the same, his head was broken and bleeding was started. Accused No.2 also assaulted on the deceased and accused No.3 fisted on his right eye. In this regard, the eyewitnesses who have been examined as PWs 1 to 4 and 13 have supported the case of the prosecution. 17. Though it is contended by the learned counsel for the appellant that they are allinterested witnesses and related with each other it is well settled proposition of law that, merely because the witnesses are related with each other, their testimony cannot be discarded, however their testimony has to be scrutinized with great caution. By applying the said ratio the entire evidence is to be taken into consideration. Even during the course of crossexamination, the incident in question has also not been disputed. In that light, we are of the considered opinion that no real culprits will be left out by falsely implicating the accused persons that too when the deceased has suffered fatalinjuries and has subsequently died. In that light, if the evidence of the prosecution witnesses is considered then the presence of the accused persons at the place of the incident and assault committed by them is going to be established. There is nothing to discard their testimony. In that light, if the evidence of the prosecution witnesses is considered then the presence of the accused persons at the place of the incident and assault committed by them is going to be established. There is nothing to discard their testimony. 18. In order to constitute an offence u/s 141 of IPC, common object of the persons forming unlawful assembly is necessary. In order to ascertain the same, the Court has to ascertain whether the object was in their mind when they came together or whether it occurs to them afterwards. On fact, whether it occurs prior to the incident or subsequently at the time ofincident is not material point at the time of commission of the offence it must present. It is necessary that the object should be common to the persons who compose the assembly. Further, what is to be proved in a case registered for the offence u/s 149 IPC is to be looked into. In such a case it is important to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed, then under such circumstances the accused persons can be heldliable for the said offence. Apart from that, there must be access between common object and the offences. Ifit is found that the act was committed to accomplish the same object, every member of the assembly will be liable for the same. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Radha Mohan Singh alias Lal Saheb and Others v. State of Uttar Pradesh, (2006) 2 SCC 450 wherein at paragraph Nos.21 and 22 it has been held as under: "21. The question arises whether the conviction of the remaining accused under Section 302 read with Section 149 IPC is legally sustainable. The scope of Section 149 I.P.C. was explained in Mizaji v. State of U.P, (1959) AIR SC 572 , which decision has been followed in many later cases, in the following manner : "The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough ifit is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 ifit can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149 Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part." 22. In Alauddin Mian v. State of Bihar, (1989) AIR SC 1456 the import of Section 149 IPC was explained as under : "....... This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penalliability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. Since this section imposes a constructive penalliability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and ifit is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, it is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more ofits members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149. - - - 19. Apart from that, it is important that, in an unlawful assembly number of persons gathered is to be taken into consideration. The common object could be formed on the spur of moment and does not require prior deliberation or discussion. The course of conduct adopted by the members of such assembly, their behaviour before, during and after the incident and the arms carried, are few basic and relevant factors to determine the common object. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Manjit Singh Vs. State of Punjab, (2019) 8 SCC 529 . This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Manjit Singh Vs. State of Punjab, (2019) 8 SCC 529 . At paragraph Nos.14.1 to 14.5 it has been observed as under: "14.1. The relevant part of Section 141 IPC could be usefully extracted as under: 141. Unlawful assembly.- An assembly of five or more persons to designated an "unlawful assembly", if the common object of the persons composing that assembly is xxx xxx xxx Third.- To commit any mischief or criminal trespass, or other offence; or xxx xxx xxx Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." 14.2. Section 149, rendering every member of unlawful assembly guilty of offence committed in prosecution of common object reads as under:- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- 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." 14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikander Singh,this Court observed as under:- "15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. *** *** *** 17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. 18. In Masalti v. State of U.P, (1965) AIR SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) "17. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. 18. In Masalti v. State of U.P, (1965) AIR SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) "17. Section 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 Section 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." 14.4. In the case of Subal Ghoral (supra), this Court, after a survey of leading cases, summed up the principles as follows:- "52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly. 53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution." 14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e., five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object. - - - 20. Whether such act was committed in prosecution of the common object of the assembly and alternatively whether the members of the assembly knew that the of fence was likely to be committed in prosecution of such common object, is one of the ingredients and it all depends upon facts and circumstances of the case on hand. There is no any straight jacket formula to this aspect. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar, (2019) 5 SCC 469 . There is no any straight jacket formula to this aspect. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar, (2019) 5 SCC 469 . At paragraph No. 24 has been held as under: "It is well settled that to determine whether an accused, being a member of an unlawful assembly, is liable for a given of fence, it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and al ternatively whether the members of the assembly knew that the of fence was likely to be commi tted in prosecution of such common object. This, in turn, has to be determined f rom the facts and circumstances of each case." - - - 21. Keeping in view the above proposition of law and on perusal of the evidence of the eyewitnesses, the course of conduct adopted by such assembly, their behaviour before, during and after the incident, and the arms carried, it indicates that, the said few ingredients are lacking to show that accused persons with a common object the accused persons by constituting an unlawful assembly came there by holding deadly weapons and assaulted the deceased and other injured witnesses. In that light, the finding given by the trial Court regarding the fact that the accused persons by constituting an unlawful assembly came and got assaulted the deceased is not based upon any material as stated in the decision quoted supra, is not correct. 22. On perusal of the judgment of the trial Court, we are surprised to know the fact that, even though such evidence is not available on record, the trial Court has come to the conclusion that accused Nos.2 to 6, 8, 9 and 10 are liable to be convicted for the offences punishable u/s 324 r/w Sec. 149 of IPC and also accused Nos.3, 7 and 11 are convicted for the offences punishable u/s 323 r/w Sec. 149 of IPC. But for the reasons best known to the trial Court, it has not convicted the other accused persons for the offence u/s 302 of IPC. But for the reasons best known to the trial Court, it has not convicted the other accused persons for the offence u/s 302 of IPC. When the State has also not preferred any appeal against the said judgment, we are of the considered opinion that much discussion is not required in this behalf with regard to the said finding given against other accused persons. In that light, the contention of the learned Addl . SPP that other accused persons have been convicted and they have not preferred any appeal, is not acceptable. 23. On perusal of the evidence of eyewitnesses it indicates that the accused persons have committed an of fence by assaulting the deceased with a club and caused bleeding injuries. Ex.P.26, the PM report of the deceased goes to show that the deceased had sustained injury to his cranium and spinal canal and the Doctor has opined that the death is due to shock and hemorrhage (inter cranial due to head injury caused by assault with hard and blunt weapons). If that aspect of the matter is taken into consideration with reference to the evidence of PW18, the Doctor, who has conducted autopsy over the body of the deceased, it indicates that the deceased died due to the assault said to have been committed by the accused No.1. There is corroboration to the evidence of eyewitnesses and medical evidence. There is nothing to discard their evidence. In that light, the finding given for convicting the accused No.1 deserves to be confirmed. 24. At this juncture the learned counsel for the appellant submitted that the alleged incident has taken place in a spur of moment and the deceased has suffered with injuries, but it is without there being any premeditation or intention in the said situation the incident has taken place when the scuff le took place between the parties. It is her further submission that, as per the evidence of PW1 he has deposed that, inspite of resistance, accused No.1 Satish assaulted on the head of the deceased with club and as a result of the same the head was broken and then thereafter it is the accused No.2 who assaulted with club and the accused No.3 fisted on his right eye. Even during the course of crossexamination it has been suggested that there was no animosity between the accused and the family members of the accused and one of the accused is the President of the Grama Panchayat and another one is the Director of Grama Seva Sahakari Sangha. Even the weapon which has been used is not a lethal weapon, it is a club which was laying there with which accused No.1 assaulted. Even in the evidence of these eyewitnesses nowhere it discloses that the accused persons prior to the alleged incident have made preparation for commission of the said offences. 25. If all these materials are looked into, it shows that the accused No.1 had no intention to cause death of the deceased. In order to invoke the benefit of exception I & II to Sec. 300 of IPC, the accused must show that there was provocation and such provocation was both grave and sudden and there must be simultaneous reaction and which deprives them and the power of self control which is caused by the person whose death has been caused. For the purpose of brevity, we quote the provisions of Section 300 IPC with exceptions I to IV which read as under: 300. Murder. Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or (Secondly) Ifit is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or (Thirdly) If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or (Fourthly) If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. - - - Applying the ratio laid down by the Hon'ble Supreme Court stated supra and the provisions and exceptions to Sec. 300 of IPC, if all the facts and circumstances are looked into, the evidence produced by the prosecution establishes the guilt of the accused-appellant but at the same time there was no intention to cause death of the deceased and in that light the trial Court ought to have convicted the accused-appellant for the offence punishable u/s 304-II of IPC instead of convicting for the offence punishable u/s 302 of IPC. In that light, submission made by the learned counsel for the appellant appears to be having force and the same is to be accepted. Hence, the appellant is liable to be convicted for the offence punishable u/s 304-I I IPC instead of Sec. 302 of IPC. Accordingly, we pass the following order. ORDER The appealis partly allowed. The impugned judgment of conviction and order of sentence passed by the learned II Addl. District & Sessions Judge, Haveri, sitting at Ranebennur in S.C. No. 26/2008 dated 15.03.2016 is modified to the extent that the appellant: accused is convicted for the offence punishable u/s 304-II of IPC and is sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.10,000/-. In default of payment of fine, he shall undergo simple imprisonment for a further period of two months. The trial Court is directed to secure the presence of accused No.1 and issue the conviction warrant to serve the remaining period of sentence, if he has not completed the above said sentence. The accused has been given set off u/s 428 of Cr.P.C. Registry to send back the records to the trial Court forthwith.