JUDGMENT : GOUTAM BHADURI, J. 1. The present appeals are against the judgment dated 24.01.2020 passed by the II Addl. Judge to the Court of I Addl. Sessions Judge, Raipur in Sessions Trial No. 86/2019 whereby the appellants have been convicted and sentenced as under: Conviction and Sentence of Appellant Devesh in Cr. Appeal No. 310/2021 Conviction Sentence Fine Default stipulation for non- payment of fine u/s 302 r/w 149 IPC R.I. for life Rs. 20,000/- Additional simple imprisonment for one year u/s 148 R.I. for 1 year Rs. 1,000/- S.I. for one month u/s 147 R.I. for 6 months Rs. 500/- S.I. for 15 days Conviction & sentence of Appellants Vikas Verma, Karan Rathore, Rupesh Kumar Verma, Sanjay @ Monu in Cr. Appeal No. 399/2020 Conviction Sentence Fine Default stipulation for non- payment of fine u/s 302 r/w 149 IPC R.I. for life Rs. 20,000/- Additional simple imprisonment for one year u/s 148 R.I. for 1 year Rs. 1,000/- S.I. for one month u/s 147 R.I. for 6 months Rs. 500/- S.I. for 15 days 2. Both these appeals are decided together by this common judgment as the facts and evidence collected by the prosecution against all the accused are similar. 3. The brief facts of the case are that on 21.12.2018 one Sonu Meshram lodged a report informing that while he was standing near a Baba Shop namely Krishna Provisions situated near his house and was talking with his friend, his tenant Krishna Nepal the deceased, was going towards the shop. At that time, all the accused came and started assaulting Krishna Nepali with Club, Lathi (Danda), Cricket Bat and further assaulted by knife. Four people were named in the FIR i.e. Vikash Verma (A-1), Karan Rathore (A-2), Rupesh Verma (A-3) and Monu Porte @ Sanjay (A-4) who were residents of Vikas Nagar. After the assault was made, Krishna Nepali fell down on the ground. He was rushed to the hospital but succumbed to the injuries. The FIR (Ex.P-5) was initially lodged under section 302 read with section 34 IPC against 3 accused. Subsequently, the investigation was conducted and while the charge sheet was filed u/s 147, 148, 149, 302 IPC against all the accused and in respect of 3 other juveniles Sandeep Mule, Ritik Mulchandani & Kishan Chandel, the trial commenced separately before the Juvenile Board. Subsequently, the investigation was conducted and while the charge sheet was filed u/s 147, 148, 149, 302 IPC against all the accused and in respect of 3 other juveniles Sandeep Mule, Ritik Mulchandani & Kishan Chandel, the trial commenced separately before the Juvenile Board. Before the Court of Sessions the present accused abjuried the guilt and the trial commenced on denial of charges. 4. The prosecution on its behalf examined as many as 13 witnesses and exhibited 41 documents. The prosecution has primarily relied on the statements of PW-3 Yogesh Meshram, PW-4 Aditya Lonharkar, PW-7 Avinash Kosle & PW-9 Ranjit Singh @ Golu as eye-witnesses. No evidence was adduced on behalf of the defence. The learned trial Court after evaluating the facts and evidence convicted and sentenced the accused as aforesaid. Hence this appeal. 5...... (i) Learned counsel for the appellants in both the appeals would submit that the conviction u/s 302 IPC with the aid of section 149 IPC is not made out as the evidence adduced by the prosecution do not suggest that there was meeting of mind and there was no common object to kill deceased Krishna Nepali. (ii) He would further submit without prejudice that the way the incident happened would show that the quarrel took place in the wake of an earlier dispute and had there been any intention to kill, the accused would have armed with the lethal weapons. He went through the statements of witnesses and submits that no inference can be drawn from the statements of witnesses and the prosecution has failed to prove the same. (iii) He further submits that there exists difference of time of incident as in the FIR (Ex.P-5) lodged by PW-3 Yogesh Meshram the time of incident is shown as 4.30 p.m. whereas he has stated in his evidence before the Court that incident took place at about 12.00 noon. Another eye witness PW-9 Ranjit Singh stated that the incident occurred on 21.12.2018 at about 1.00 p.m. to 1.30 p.m. Therefore, there is certain inconsistency in the statement of prosecution witnesses about the time of incident. (iv) He further submits that the appellants have been falsely implicated for the reason that there exists previous enmity which would be clear from the statements of PW-3 Yogesh Meshram and PW-4 Aditya Lonharkar. (iv) He further submits that the appellants have been falsely implicated for the reason that there exists previous enmity which would be clear from the statements of PW-3 Yogesh Meshram and PW-4 Aditya Lonharkar. He further submits that no independent witnesses have been examined and if the previous enmity is taken into account, the evidence of independent witnesses was must. He placed reliance on a judgment of this court rendered in Maheshram vs. State of Chhattisgarh, 2023 (1) CGLJ 44 and Kameshwar Painkra and Others vs. State of Chhattisgarh, decided on 02.11.2022. 6. Per contra, learned State Counsel would submit that 5 eye-witnesses were examined before the Court where the consistency of facts and evidence about the happening of incident and assault was maintained. He referred to the postmortem report Ex.P-21 which is proved by Dr. P. Tandan (PW-11) and submits that the accused were armed with club and cricket-bat and made assault and one of the juveniles as per the evidence inflicted knife injuries into the abdomen of deceased, therefore, the common intention can be gathered from the very fact that they were moving together. He further submits that on the memorandum statement of Rupesh (A-3) on the basis of memorandum (Ex.P-8), the knife was recovered from juvenile and also the bamboo stick was recovered which was used for assault. Likewise on the seizure memorandum of Sanjay @ Monu Porte (A-4) vide Ex.P-10 the bamboo stick was recovered (Ex.P.11) whereas from Vikas Verma (A-1) as per memorandum Ex.P-16 seizure of cricket bat was made. Therefore, the narration of incident which has been stated by the witnesses has been clearly established and apart from the fact, the juveniles namely Sandeep Mule, Ritik Mulchandani and Kishan Chandel who were tried separately have been convicted with the aid of sections 148 & 149 of IPC against which the appeal is pending before the Sessions Judge. 7. We have heard learned counsel for the parties at length and have also perused the records. 8. According to Ex.P-5, on 21.12.2018 the FIR was lodged about the happening of incident of assault over the deceased Krishna Nepali wherein the time has been shown as 4.30 p.m. Pursuant to such FIR lodged by PW-3, the investigation was carried out after death of Krishna Nepali. 8. According to Ex.P-5, on 21.12.2018 the FIR was lodged about the happening of incident of assault over the deceased Krishna Nepali wherein the time has been shown as 4.30 p.m. Pursuant to such FIR lodged by PW-3, the investigation was carried out after death of Krishna Nepali. Eye-witness PW-3 Yogesh Meshram has deposed that the date of incident was 31st December, however, which appears to be wrongly stated instead of 21st December and as per his deposition, at 12.00 noon all the accused Vikash Verma (A-1), Karan Rathore (A-2), Sanjay @ Monu Patre (A-4) and Devesh came together and Rupesh Verma (A-3) identified the deceased that he is Krishna Nepali. Thereafter, all the accused started beating by way of club cricket bat and at the same time, accused Kishan Chandel assaulted by knife into the abdomen of Krishna Nepali whereby the intestines came out. 9. PW-4 Aditya Lonharkar has made similar statement. However, the date of incident is stated to be December 2018 at about 2 p.m. PW-4 has stated that Vikash Verma (A-1) Karan Rathore (A-2), Rupesh Verma (A-3), Monu Porte (A-4) and Devesh (A-5) along with Juvenile Kishan Chandel came together and Rupesh Verma (A-3) identified Krishna Nepali that he has assaulted him earlier and therefore they all started beating by way of club, bamboo stick, cricket bat and by hands and fists and Kishan Chandel inflicted assault by knife. 10. PW-7 Avinash Kosle who is also an eye witness has made similar statement and named all the accused to say that they were beating the deceased. PW-9 Ranjit Singh @ Golu has made similar statements that all the accused were beating and when they reached near victim injured Krishna Nepali, all the accused ran away. According to this witness, the knife injury was inflicted by Kishan Chandel whereby the intestines came out. The Postmortem report Ex.P-21 is proved by Dr. P. Tandan (PW-11). He has stated in his evidence that there was a puncture wound present in the right side of the stomach of the deceased admeasuring 5 x 4 cm from where the the intestine came out. The depth of the said wound is about 6 to 7 cm. There were multiple cut wounds on the intestine. There was a cut mark of 2 x 1 cm size on the lever. The depth of the said wound is about 6 to 7 cm. There were multiple cut wounds on the intestine. There was a cut mark of 2 x 1 cm size on the lever. The doctor opined that the death was due to hemorrhage and shock as a result of stab injury on abdomen. The injuries are homicidal in nature and the duration of death was within 24 hours prior to PM examination. 11. The query report (Ex.P-22) in respect of seizure of knife also states that the injuries found on the body of the deceased suggest that they were caused by knife. This fact also stood firm by the statement of eye-witnesses that the knife injuries were inflicted on the abdomen of deceased. According to the doctor, apart from that incised injury, the other injuries were not found. But his statement suggests that there were signs of redness in the superficial injury present on the body of deceased and the injury was caused by some sharp edged object before his death. In Panchnama (Ex.P-4) which was prepared immediately after the incident, several injuries were noticed by the Panch witness. A perusal of the inquest report (Panchnama Ex.P-4) proved by PW-3 shows the grave nature of such injuries inflicted to the deceased Krishna Nepali wherein several injuries on his legs and arms were found. Even the nails of deceased were plucked-out. The cumulative reading of the statements of witnesses along-with the postmortem report and inquest report shows that the death was due to incised injury caused by knife by juvenile Kishan Chandel. Now the question therefore looms large as to whether the conviction of the appellants can be sustained u/s 149 of IPC. 12. The Supreme Court in Daya Kishan vs. State of Haryana, (2010) 5 SCC 81 has held as under: “27. There are two essential ingredients of Section 149 viz. (1) commission of an offence by any member of an unlawful assembly, and (2) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Once the court finds that these two ingredients are fulfilled, every person, who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. Once the court finds that these two ingredients are fulfilled, every person, who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the offensive acts. Whenever a court convicts any person of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but that in pursuance of such common object the offence was committed. There is no manner of doubt that before recording the conviction under Section 149 IPC, the essential ingredients of Section 149 IPC must be established.” 13. Further in Vinubhai Ranchhodbhai Patel vs. Ravibhai Dudabhai Patel, (2018) 7 SCC 743 , the Supreme Court has held as under: 24. To understand the true scope and amplitude of Section 149 IPC it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) IPC which is titled “Of the offences against the public tranquility.” Sections 141 to 158 deal with offences committed collectively by a group of 5 or more individuals. 25. Section 141 IPC declares an assembly of five or more persons to be an “unlawful assembly” if the common object of such assembly is to achieve any one of the five objects enumerated in the said section. One of the enumerated objects is to commit any offence. “The words falling under Section 141, clause third “or other offence” cannot be restricted to mean only minor offences of trespass or mischief. These words cover all offences falling under any of the provisions of the Penal Code or any other law.” The mere assembly of 5 or more persons with such legally impermissible object itself constitutes the offence of unlawful assembly punishable under Section 143 IPC. It is not necessary that any overt act is required to be committed by such an assembly to be punished under Section 143. 26. It is not necessary that any overt act is required to be committed by such an assembly to be punished under Section 143. 26. If force or violence is used by an unlawful assembly or any member thereof in prosecution of the common objective of such assembly, every member of such assembly is declared under Section 146 to be guilty of the offence of rioting punishable with two years’ imprisonment under Section 147. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object. In other words, the employment of force or violence need not result in the commission of a crime or the achievement of any one of the five enumerated common objects under Section 141. 27. Section 148 declares that rioting armed with deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). There is a distinction between the offences under Sections 146 and 148. To constitute an offence under Section 146, the members of the “unlawful assembly” need not carry weapons. But to constitute an offence under Section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under Section 146 and the person charged with an offence under Section 148 must also be armed with a deadly weapon. 28. Section 149 propounds a vicarious liability in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object. 29. The scope of Section 149 IPC was enunciated by this Court in Masalti: (AIR p. 211, Para 17) “17........The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. 29. The scope of Section 149 IPC was enunciated by this Court in Masalti: (AIR p. 211, Para 17) “17........The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in Baladin assume significance; otherwise, in law, 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 he 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, 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.” 30. It can be seen from the above, Sections 141, 146 and 148 create distinct offences. Section 149 only creates a vicarious liability. However, Sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. The doctrine is well known in civil law especially in the branch of torts, but is applied very sparingly in criminal law only when there is a clear legislative command. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under Section 141 made punishable under Section 143 IPC. 31. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under Section 141 made punishable under Section 143 IPC. 31. The concept of an unlawful assembly as can be seen from Section 141 has two elements: (i) The assembly should consist of at least five persons. (ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein. 32. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an “unlawful assembly” consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC. 33. The common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members are indicative of the common object of the gathering. Assessing the common object of an assembly only on the basis of the overt acts committed by such individual members of the assembly, in our opinion is impermissible. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries (as proved by medical evidence); merely on the ground that the injuries inflicted by such members are relatively less serious and non-fatal. 34. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. 34. For mulcting liability on the members of an unlawful assembly under Section 149, it is not necessary that every member of the unlawful assembly should commit the offence in prosecution of the common object of the assembly. Mere knowledge of the likelihood of commission of such an offence by the members of the assembly is sufficient. For example, if five or more members carrying AK 47 rifles collectively attack a victim and cause his death by gunshot injuries, the fact that one or two of the members of the assembly did not in fact fire their weapons does not mean that they did not have the knowledge of the fact that the offence of murder is likely to be committed. 35. The identification of the common object essentially requires an assessment of the state of mind of the members of the unlawful assembly. Proof of such mental condition is normally established by inferential logic. If a large number of people gather at a public place at the dead of night armed with deadly weapons like axes and firearms and attack another person or group of persons, any member of the attacking group would have to be a moron in intelligence if he did not know murder would be a likely consequence.” 14. The Supreme Court in a recent decision in Naresh @ Nehru vs. State of Haryana, 2020 10 SCC 134 has dealt with the issue whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of section 149 IPC ? The Court in such case has answered that the question will depend upon on the circumstances in which the incident had taken place and conduct of the members of unlawful assembly including the weapon they carried or used on the spot. Para 24 of the judgment is relevant here and quoted below: 24. This court in Roy Fernandes vs. State of Goa and Others, (2012) 3 SCC 221 has held: “18. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC? 19. Section 149 IPC reads: “149. This court in Roy Fernandes vs. State of Goa and Others, (2012) 3 SCC 221 has held: “18. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC? 19. Section 149 IPC reads: “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.” A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly “in prosecution of the common object” of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly “knew that the same is likely to be committed in prosecution of the common object of the assembly.” 20. As noticed above, the commission of the offence of murder of Felix Felicio Monteiro was itself not the common object of the unlawful assembly in the case at hand. And yet the assembly was unlawful because from the evidence adduced at the trial it is proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within the contemplation of clause (3) of Section 141 IPC, which may to the extent the same is relevant for the present be extracted at this stage: “141. Unlawful assembly - An assembly of five or more persons is designated an ‘unlawful assembly’ if the common object of the persons composing that assembly is: First: *** Second: *** Third: To commit any mischief or criminal trespass, or other offence.” 21. Unlawful assembly - An assembly of five or more persons is designated an ‘unlawful assembly’ if the common object of the persons composing that assembly is: First: *** Second: *** Third: To commit any mischief or criminal trespass, or other offence.” 21. From the evidence on record, we are inclined to hold that even when commission of murder was not the common object of the accused persons, they certainly had come to the spot with a view to overawe and prevent the deceased by use of criminal force from putting up the fence in question. That they actually slapped and boxed the witnesses, one of whom lost his two teeth and another sustained a fracture only proves that point. 22. What then remains to be considered is: whether the appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him from putting up the fence? The answer to that question will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. It was so stated by this Court in Lalji vs. State of U.P. (1989) 1 SCC 437 : 1989 SCC (Cri) 211 in the following words: (SCC p. 441, Para 8) “8........Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.” 23. The Court elaborated the above proposition in Dharam Pal vs. State of U.P. (1975) 2 SCC 596 : 1975 SCC (Cri) 704 as: (SCC p. 603, Para 11) “11. Even if the number of assailants could have been less than five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7-6-1967, shows pre-planning. Some of the assailants had sharp- edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. Some of the assailants had sharp- edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a preconcert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34 IPC also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable doubt, which makes such a principle applicable. [See Yeshwant vs. State of Maharashtra, (1972) 3 SCC 639 : 1972 SCC (Cri) 684 and Sukh Ram vs. State of U.P. (1974) 3 SCC 656 : 1974 SCC (Cri) 186] The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible, or invariable rule applicable for arriving at what is really an inference from the totality of facts and circumstances which varies from case to case. We have to examine the effect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in the context of which they are enunciated.” 15. Now reverting to the facts of the present case to find out the common object we have gone through the statement of witnesses. In the statement of PW-3 Yogesh Meshram though the submission is made that there was a previous enmity because of certain proceeding u/s 307 IPC but at Para 12 of his cross examination he deposes that the said dispute was with Manjit Singh and Avinash Kosle. Para 17 of his cross examination would show that Vikash A-3 assaulted with cricket bat. 16. Likewise PW-4 Aditya Lonharkar at Para 9 states that one Habib was standing near the Kali temple situated near his house and at that time, the accused and three other boys came there and started beating him and having asked why they were beating, they replied that since he is in the company of Krishna Nepali, they were assaulting this witness. 17. 17. PW-7 Avinash Kosle in his cross examination volunteers that while the deceased fell down on the ground he saw the accused were assaulting and similarly PW-9 Ranjit Singh @ Golu who is also an eye-witness states that when he reached to the spot, he saw all the accused were beating the deceased Krishna Nepali and even after he fell down, they were beating. 18. So far as the seizure of weapons is concerned, on the memorandum statement (Ex.P-8) of Rupesh (A-3) which is proved by PW-6 Rohit Jangne, a bamboo stick was recovered from accused Rupesh vide Ex.P-9. Likewise, from Sanjay @ Monu Porte, bamboo stick was recovered vide Ex.P-11 on his memorandum statement (Ex.P-10). Similarly on the memorandum of Vikas Verma (A-1) vide Ex.P-16, cricket bat was seized vide Ex.P-12 19. A Cumulative reading of evidence of all the eye witness and the seizure memorandums of accused, while applying the principle laid down by Supreme Court in Naresh alias Nehru -vs. State of Haryana (supra) which points that the circumstance which is stated by PW-4 Aditya Lonharkar that on the date of incident, he was assaulted in the back ground of the that he used to accompany and move around with the deceased and further applying the test, the circumstance in which the incident took place and conduct the evidence would show that the appellants were waiting for deceased to assault. Therefore, they were armed with Bamboo sticks and cricket bat which were used to inflict assault. Further the fatal injuries were caused by Kishan Chandel by knife. Therefore, the commission of offence by the members of the unlawful assembly in prosecution of the common object of the assembly was proved. Barring the fact they may not be in know of the fact that the members of the assembly knew the act likely to be committed to be that of murder. 20. When such act is committed whether the exception 4 to Section 300 of IPC can be applied. In order to find out the same, we have gone through the principles laid down by the Supreme Court in case of Arjun vs. State of Chhattisgarh at Paras 20 and 21, which reads thus: “20. 20. When such act is committed whether the exception 4 to Section 300 of IPC can be applied. In order to find out the same, we have gone through the principles laid down by the Supreme Court in case of Arjun vs. State of Chhattisgarh at Paras 20 and 21, which reads thus: “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. UT, Chandigarh, (1989) 2 SCC 217 , it has been explained as under: (SCC p. 220, Para 7) “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of moment picks-up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam vs. State, (2008) 15 SCC 590 , in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under: (SCC p. 596, Para 9) “9..........“18. The help of Exception 4 can be invoked if death is caused (a) without premeditation: (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case with Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. To bring a case with Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provision means “unfair advantage.” 21. Applying the aforesaid principles in this case, the evidence would show that all the members of the accused formed as unlawful assembly to commit the offence with common object. Therefore few of them armed with bamboo sticks and cricket bats. The accused were waiting for the deceased to assault and having found him they started beating him. At this juncture, one of the juveniles namely Kishan Chandel inflicted an injury by knife which proved fatal. Therefore, the members of unlawful assembly may have common object to commit the offence but the accused herein appears to have no common intention to commit murder. 22. In the case in hand, the evidence would show that the deceased was in the look out of accused from morning and thereafter the accused came and assaulted with bamboo clubs and cricket-bat and one of the juveniles came armed with knife and inflicted knife injury on the abdomen. After the accused was identified, all they started causing injuries. 22. In the case in hand, the evidence would show that the deceased was in the look out of accused from morning and thereafter the accused came and assaulted with bamboo clubs and cricket-bat and one of the juveniles came armed with knife and inflicted knife injury on the abdomen. After the accused was identified, all they started causing injuries. So the intention and knowledge to cause injuries was there but inflicting grave injury with knife by one of the accused was without any premeditation and it was done in heat of passion for the reason that certain previous dispute took place in between them. It is evident that the accused/appellants assaulted the deceased with bamboo clubs, cricket bat and by hands and fists knowingly the peculiar condition of deceased wherein he was already injured. In such circumstances it cannot be said that intention and knowledge to cause death were not present. Hon’ble Supreme Court in Kalegura Padma Rao vs. State of Andhra Pradesh, (2007) 12 SCC 48 , Para 9 held that the distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of person in normal health or condition. 23. Therefore, applying the above parameters laid down to the facts of the present cases, we are of the considered view that these cases would fall u/s 304 Part I of IPC and accordingly, we modify the conviction of the appellants u/s 302 IPC and convict them u/s 304 Part-I read with section 149 IPC. Accordingly the appellants are sentenced to undergo R.I. for 10 years. However, their convictions under sections 148 and 147 IPC do not warrant interference. In the result, the appeals are allowed in part.