1. Since both the appeals arise out of a common judgment dated 5-11-2015 passed by the 1st Additional Sessions Judge, Raipur, in Sessions Trial No.178/2013, they were clubbed together, heard together and are being decided by this common judgment.

2. Laxman @ Lucky Tandi (A-1), Lalit Soni (A-2), Kaliya @ Yudhishthir Vibhar (A-3) & Vikky Soni (A-5) have preferred Cr.A. No.1461/2015, whereas King Kumhar (A-4) has preferred Cr.A. No.348/2016 under Section 374(2) of the CrPC against the judgment of conviction recorded and sentence awarded by the learned Additional Sessions Judge by which the appellants herein have been convicted for offences under Sections 302 read with Section 149, 323 read with Section 149 & 148 of the IPC and sentenced to undergo imprisonment for life & pay fine of ` 30,000/- each, in default, to further undergo additional rigorous imprisonment for six months; rigorous imprisonment for one year & fine of ` 1,000/- each, in default, to further undergo additional rigorous imprisonment for fifteen days; and rigorous imprisonment for one year & fine of ` 1,000/- each, in default, to further undergo additional rigorous imprisonment for fifteen days, respectively, with a direction to run the sentences concurrently.

3. Case of the prosecution, in short, is that on 12-5-2013 at 12:30 night, there was a marriage in the nearby locality from where Kum. Premshila Jani (PW-1), her father, mother & brother - Shankar Jani have brought food and they were eating on which Premshila (PW-1) was serving water, at that time, the appellants came to their house whereupon Shankar Jani requested them to join for dinner which they did not accede and started abusing pursuant to which appellant Lalit (A-2) assaulted Shankar Jani by iron axe, appellants Laxman (A-1) & Kaliya (A-3) assaulted him by bamboo stick and appellants King Kumhar (A-4) & Vikki Soni (A-5) assaulted by hands & fists by which he suffered grievous injuries and became unconscious. Shankar Jani was taken to Ambedkar Hospital, offence was registered and during the course of treatment, he died. Inquest was conducted vide Ex.P-5 and dead body was subjected to postmortem which was conducted by Dr. S.K. Bagh (PW-9). According to postmortem report Ex.P-20, death was due to haemorrhage and shock as a result of multiple stab injuries on the body and death was homicidal in nature. The postmortem report is proved by Dr. S.K. Bagh (PW-9). Pursuant to the memorandum of Laxman (A-1) & & Kaliya (A-3), bamboo stick was seized and pursuant to the memorandum of Lalit (A-2), knife was seized, however, nothing has been seized from King Kumhar (A-4) & Vikki Soni (A-5). Seized articles were sent for chemical examination to the FSL and as per the FSL report Ex.P-37, blood was not found on the bamboo sticks seized from Laxman (A-1) & Kaliya (A-3), however, human blood was found on the knife seized from Lalit (A-2).

4. Statements of the witnesses were recorded under Section 161 of the CrPC. After usual investigation, the accused / appellants were charge-sheeted for offences under Sections 147, 148, 323 read with Section 149 & 302 read with Section 149 of the IPC and charge-sheet was filed before the jurisdictional criminal court and the case was committed to the Court of Sessions from where the 1st Additional Sessions Judge, Raipur received the case on transfer for trial and for hearing and disposal in accordance with law.

5. The accused / appellants abjured the guilt and entered into witness. In order to bring home the offence, the prosecution examined as many as fifteen witnesses and exhibited 39 documents along with Articles A-1 & A-2. The defence has not examined any witness, but exhibited four documents Exs.D-1 to D-4 i.e. statements of Kum. Premshila, Bhagchand, Okiya Jani recorded under Section 161 of the CrPC and copy of relevant page of the register, respectively.

6. The trial Court upon appreciation of oral and documentary evidence on record and considering the homicidal nature of death of the deceased and also considering that it is the appellants who have caused the murder of the deceased, proceeded to convict and sentence them under Sections Sections 148, 323 read with Section 149 & 302 read with Section 149 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeals under Section 374(2) of the CrPC have been preferred.

7. Mrs. Meera Ansari, Mr. Awadh Tripathi and Mr. Dinesh Yadav, learned counsel, would submit qua appellants Laxman (A-1), Kaliya (A-3), King Kumhar (A-4) & Vikki Soni (A-5) that A-1 has not been named in the FIR and no blood has been found on the bamboo stick seized from him as also on the bamboo stick seized from A-3 and no memorandum has been recorded from A-4 & A-5 and nothing has been seized from them. In the postmortem report, no lacerated wound has been found on the person of the deceased which could have been caused by bamboo stick. Learned counsel would further submit that these appellants (A-1, A-3, A-4 & A-5) did not know that Lalit (A-2) was armed with knife and offence of murder is likely to take place, as such, they are entitled for acquittal on the ground of benefit of doubt and therefore the appeals qua A-1, A-3, A-4 & A-5 be allowed.

8. Mrs. Meera Ansari, learned counsel would further submit qua appellant Lalit (A-2) that the prosecution has not proved the offence against Lalit (A-2) beyond reasonable doubt and knife has been seized from the spot which is apparent from the statement of Bhagchand (PW-2) - father of the deceased, and only blood has been found on the said knife, no human blood has been found. In that view of the matter, in light of the decision of the Supreme Court in the matter of Balwan Singh v. State of Chhattisgarh and another (2019) 7 SCC 781, [LQ/SC/2019/1198] recovery of weapon is of no use and the FSL report Ex.P-37 is also of no use in absence of any other evidence, therefore, Lalit (A-2) is also entitled for acquittal on the ground of benefit of doubt.

9. On the other hand, Mr. Ali Asgar, learned Deputy Advocate General appearing for the State / respondent, would support the impugned judgment and would submit that the trial Court has been able to bring home the offence against the appellants beyond reasonable doubt and the trial Court is absolutely justified in convicting the appellants for the offences in question, as the presence of all the five accused persons has been proved and from the possession of A-1 & A-3, bamboo stick has been seized and from Lalit (A-2), knife has been seized, as such, the appeals deserve to be dismissed.

10. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well.

11. The first question whether the death of deceased Shankar Jani was homicidal in nature, has been answered by the trial Court in affirmative considering the postmortem report Ex.P-20, which has been proved by Dr. S.K. Bagh (PW-9) in which cause of death was stated to be due to haemorrhage and shock as a result of multiple stab injuries on the body and death was homicidal in nature. Such finding, in our considered opinion, is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and we hereby affirm the said finding.

12. Case of the prosecution is mostly based on the direct evidence of Premshila (PW-1) - sister of the deceased, Bhagchand (PW-2) - father of the deceased, Ukiya Bai (PW-3) - mother of the deceased and Jairam Jani (PW-11) - brother of the deceased. Premshila (PW-1) - sister of the deceased, has only stated she along with Bhagchand (PW-2), Ukiya Bai (PW-3) & Jairam Jani (PW-11), all were taking their dinner, at that time all the accused persons except Laxman (A-1) came to their house on which her brother Shankar Jani (deceased) welcomed them, particularly Kaliya (A-3), which the accused persons did not accept and started abusing and quarrelling with them and also started beating and except Laxman (A-1), all other accused persons assaulted Shankar Jani as well as her by which she suffered simple injuries. Bhagchand (PW-2) - father of the deceased, has also stated in same line and he has stated that all the accused persons assaulted his son Shankar Jani by knife by which he suffered injuries and died, but he has also stated that one knife - weapon of offence, was seized from the spot. Ukiya Bai (PW-3)- mother of the deceased, has named only Lalit (A-2) and his brother Vikki (A-5), but not named Laxman (A-1), Kaliya (A-3) & King Kumhar (A-4), however, she has stated that all the accused persons were having knife and all have assaulted by which her son Shankar Jani died and her daughter Premshila (PW-1) suffered simple injuries. Jairam Jani (PW-11) - brother of the deceased, has clearly stated that when they were taking dinner, first of all, Lalit (A-2) came on which his brother Shankar Jani offered dinner to Lalit which he did not accept and started abusing, and Lalit (A-2) assaulted his brother by knife, however, he has stated that King Kumhar (A-4) & Vikki (A-5) assaulted by hands & fists and Laxman (A-1) & Kaliya (A-3) assaulted his brother by bamboo stick by which he suffered grievous injuries and died. The doctor who has conducted postmortem i.e. Dr. S.K. Bagh (PW-9) has noticed as many as 14 injuries over the body of the deceased, out of which injuries No.1 & 2 were incised wounds and rest were stab wounds. As such, all the injuries were said to have been caused by sharp-edged weapon and allegation of causing injury by sharp-edged weapon is upon Lalit (A-2).

13. Thus, from the statements of Premshila (PW-1), Ukiya Bai (PW- 3) & Jairam Jani (PW-11), it is established that it is Lalit (A-2) who has caused stab injuries to the deceased by which he suffered grievous injuries. There is no lacerated wound on the person of the deceased which could have been caused by bamboo stick by Laxman (A-1) & Kaliya (A-3), however, bamboo sticks have been subjected to FSL examination vide Ex.P-37, but neither blood nor human blood has been found on the said bamboo sticks. As such, from the statements of Premshila (PW- 1), Ukiya Bai (PW-3) & Jairam Jani (PW-11), it is established as under: -

"1. On the date of offence, Premshila (PW-1), Bhagchand (PW-2), Ukiya Bai (PW-3) & Jairam Jani (PW-11) along with deceased Shankar Jani were taking their dinner and as per FIR Ex.P-1, all the accused / appellants herein except Laxman (A-1) came on the spot and upon quarrel, dispute took place between them on account of which, only Lalit (A-2) is said to have assaulted Shankar Jani by knife by which he suffered grievous injuries and died.

2. Laxman (A-1) has neither been named in the FIR nor named by Premshila (PW-1), even he has not been named by Ukiya Bai (PW-3).

3. Jairam Jani (PW-11) has specifically named Lalit (A-2) to have assaulted the deceased by knife.

4. From the possession of Laxman (A-1) & Kaliya (A-3), bamboo sticks have been seized, but the deceased has not sustained any injury said to have been caused from the recovered bamboo sticks, which is apparent from the postmortem report and no human blood has been found on the bamboo sticks vide FSL report Ex.P-37.

5. Human blood has been found on the jacket of Lalit (A-2).

6. No material has been seized from King Kumhar (A-4) & Vikki (A-5)."

14. In that view of the evidence, we will consider the case of appellant Lalit (A-2).

Appellant Lalit Soni (A-2)

15. Considering the statements of the prosecution eyewitnesses and the injured witness, it is quite vivid that there is no premeditation on the part of the appellants to cause the death of Shankar Jani, but considering the relationship between the parties, as deceased Shankar Jani has offered dinner to the appellants specifically to Lalit (A-2) also, it cannot be held that there was no intention on the part of appellant Lalit (A-2) to cause the death of the deceased, but he has knowledge that the injury caused is sufficient to cause death. Considering the nature of injury, it can be held that appellant Lalit (A-2) must have had the knowledge that such injury inflicted by him on the body of the deceased would likely to cause his death, however, it can safely be inferred that there is no premeditation on the part of the appellant to cause death of the deceased. Considering the fact that the injury caused upon the deceased is on account of a sudden quarrel that erupted between the parties, however, appellant Lalit (A-2) has not taken undue advantage and has not acted in unusual manner, in our considered opinion, this case would fall within the purview of Exception 4 to Section 300 of the IPC.

16. The Supreme Court in the matter of Arjun v. State of Chhattisgarh(2017) 3 SCC 247 [LQ/SC/2017/234] has elaborately dealt with the issue and observed in paragraphs 20 and 21 as under :-

"20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 [LQ/SC/1989/142] : 1989 SCC (Cri) 348] [LQ/SC/1989/142] , 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 its I 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 the 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 v. State [(2008) 15 SCC 590 [LQ/SC/2008/2051] : (2009) 3 SCC (Cri) 1130], 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 within 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 or 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 provisions means "unfair advantage".

17. In Arjun (supra), the Supreme Court has further held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC.

18. As such, considering the fact that the incident took place all of a sudden in heat of passion and injury caused by appellant Lalit (A- 2) upon the deceased is on account of a sudden quarrel that erupted between the parties, however, the appellant has not taken undue advantage and has not acted in unusual manner, in our considered opinion, his case would fall within the purview of Exception 4 to Section 300 of the IPC, as such, he is liable to be convicted under Section 304 Part-II of the IPC.

Appellants - Laxman @ Lakki Tandi (A-1), Kaliya @ Yudhishthir Vibhar (A-3), King Kumhar (A-4) and Vikky Soni (A-5)

19. So far as other appellants namely, Laxman @ Lakki Tandi (A-1), Kaliya @ Yudhishthir Vibhar (A-3), King Kumhar (A-4) & Vikky Soni (A-5) are considered, nothing has been seized from King Kumhar (A-4) & Vikky Soni (A-5), though bamboo sticks have been recovered from Laxman @ Lakki Tandi (A-1) & Kaliya @ Yudhishthir Vibhar (A-3), but no injury has been caused by bamboo stick as per the FIR (Ex.P-1) and the postmortem report (Ex.P-20) and as per the FSL report (Ex.P-37), no human blood has been found on the bamboo sticks. No specific finding regarding their overt-act has been recorded by the learned trial Court qua sharing of common object, but they were present on the date of incident as members of unlawful assembly along with appellant Lalit Soni (A-2), as such, they will be entitled for rule of caution.

20. Where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 of the IPC, their Lordships of the Supreme Court have applied rule of caution taking into consideration particular fact-situation and convicted those accused persons whose presence was clearly established and overt acts were proved.

21. In the matter of Baladin v. State of U.P. AIR 1956 SC 181 [LQ/SC/1955/83] , the Supreme Court has held that mere presence in an assembly does not make such a person a member of unlawful assembly unless it is shown that he had something or omitted to do something which would make him a member of unlawful assembly or unless case falls under Section 142 of the IPC. Merely because some persons assembled, all of them cannot be condemned ipso facto as being members of that unlawful assembly. It was incumbent upon prosecution to prove that commission of such offence must have been committed in prosecution of common object of unlawful assembly or such that members of the assembly knew that it was likely to be committed.

22. In the matter of Sherey v. State of U.P. 1991 Supp (2) SCC 437, their Lordships of the Supreme Court have held in paragraph 4 as under:

"4. ... But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed ..."

23. Similarly, in the matter of Musa Khan v. State of Maharashtra (1977) 1 SCC 733, [LQ/SC/1976/369] it has been held by their Lordships of the Supreme Court that 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 these stages, and observed in paragraph 5 as under:

"5. ... Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, 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 these stages.

..."

24. Furthermore, in the matter of Nagarjit Ahir v. State of Bihar (2005) 10 SCC 369, [LQ/SC/2005/49] their Lordships applied the rule of caution and in the facts and circumstance of the case held that "it may be safe to convict only those persons against whom overt act is alleged with the aid to Section 149 IPC lest some innocent spectators may get involved". Thereafter, all these judgments in Sherey (supra), Musa Khan (supra) and Nagarjit Ahir (supra) have been followed by their Lordships of the Supreme Court in the matter of Pandurang Chandrakant Mhatre and others v. State of Maharashtra (2009) 10 SCC 773 [LQ/SC/2009/1909] and applying the rule of caution on the accused persons therein against whom overt act was not there, held in paragraph 74 as under :-

"74. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3, and A-12 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so."

25. Lastly, in the matter of Vijay Pandurang Thakre and others v. State of Maharashtra (2017) 4 SCC 377, [LQ/SC/2017/177] it has been further held that three elements contained in Section 149 IPC i.e. (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed, are satisfied, then only a conviction under Section 149 of I.P.C., may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly and further held in paragraphs 20 & 21 as under:

"20. No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body. Had there been any common objective to cause murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the contrary, it has come on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc.

21. We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case."

26. The principles of law laid down in Musa Khan (supra) has been followed by the Supreme Court in the matter of Usmangani alias Bhura Abdul Gaffar v. State of Gujarat (2020) 12 SCC 503 [LQ/SC/2018/975] with approval. Thereafter, very recently in the matter of Arvind Kumar @ Nemichand v. State of Rajasthan wherein the scope of Section 149 of IPC was considered by the Supreme Court, it was held as under :-

"Scope of Section 149

50. Section 149 of the Code deals with a common object. To attract this provision there must be evidence of an assembly with the common object becoming an unlawful one. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object. It is the sharing of the common object which attracts the offense committed by one to the other members. Therefore, the mere presence in an assembly per se would not constitute an offense, it does become one when the assembly is unlawful. It is the common object to commit an offense which results in the said offense being committed. Therefore, though it is committed by one, a deeming fiction is created by making it applicable to the others as well due to the commonality in their objective to commit an offence. Thus, it is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed by one such member. Courts will have to be more circumspect and cautious while dealing with a case of accused charged under Section 149 IPC, as it involves a deeming fiction. Therefore, a higher degree of onus is required to be put on the prosecution to prove that a person charged with an offense is liable to be punished for the offence committed by the others under section 149 IPC. The principle governing the aforesaid aspect is taken note of by this court in Ranjit Singh v. State of Punjab, (2013) 16 SCC 752 [LQ/SC/2013/704] :

"35. Baladin v. State of U.P. [ AIR 1956 SC 181 [LQ/SC/1955/83] : 1956 Cri LJ 345] was one of the early cases in which this Court dealt with Section 149 IPC. This Court held that mere presence in an assembly does not make a person a member of the unlawful assembly, unless it is shown that he had done or omitted to do something which would show that he was a member of the unlawful assembly or unless the case fell under Section 142 IPC. Resultantly, if all the members of a family and other residents of the village assembled at the place of occurrence, all such persons could not be condemned ipso facto as members of the unlawful assembly. The prosecution in all such cases shall have to lead evidence to show that a particular accused had done some overt act to establish that he was a member of the unlawful assembly. This would require the case of each individual to be examined so that mere spectators who had just joined the assembly and who were unaware of its motive may not be branded as members of the unlawful assembly.

36. The observations made in Baladin case [ AIR 1956 SC 181 [LQ/SC/1955/83] : 1956 Cri LJ 345] were considered in Masalti v. State of U.P. [ AIR 1965 SC 202 [LQ/SC/1964/176] :(1965) 1 Cri LJ 226] where this Court explained that cases in which persons who are merely passive witnesses and had joined the assembly out of curiosity, without sharing the common object of the assembly stood on a different footing; otherwise it was not necessary to prove that the person had committed some illegal act or was guilty of some omission in pursuance of the common object of the assembly before he could be fastened with the consequences of an act committed by any other member of the assembly with the help of Section 149 IPC. The following passage is apposite in this regard: (Masalti case [ AIR 1965 SC 202 [LQ/SC/1964/176] : (1965) 1 Cri LJ 226], 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 [AIR 1956 SC 181 [LQ/SC/1955/83] : 1956 Cri LJ 345] 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."

(emphasis supplied)

37. Again in Bajwa v. State of U.P. [(1973) 1 SCC 714] [LQ/SC/1973/66] this Court held that while in a faction-ridden society there is always a tendency to implicate even the innocent with the guilty, the only safeguard against the risk of condemning the innocent with the guilty lies in insisting upon acceptable evidence which in some measure implicates the accused and satisfies the conscience of the court.

39. That in a faction-ridden village community, there is a tendency to implicate innocents also along with the guilty, especially when a large number of assailants are involved in the commission of an offence is a matter of common knowledge. Evidence in such cases is bound to be partisan, but while the courts cannot take an easy route to rejecting out of hand such evidence only on that ground, what ought to be done is to approach the depositions carefully and scrutinise the evidence more closely to avoid any miscarriage of justice."

27. Returning to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court and applying the rule of caution, it is quite vivid that except Lalit Soni (A-2) other four accused persons were not armed with deadly weapon, even if it is held that Laxman (A-1) & Kaliya (A-3) were armed with bamboo stick, but no overt-act has been pleaded and established against them, particularly no injury caused by bamboo stick i.e. lacerated wound, has been noticed over the body of the deceased by the doctor conducting postmortem i.e. Dr. S.K. Bagh (PW-9) and it has not been noticed in postmortem report Ex.P-20. Considering the nature of dispute, there is nothing on record to show that Laxman @ Lakki Tandi (A-1), Kaliya @ Yudhishthir Vibhar (A-3), King Kumhar (A-4) & Vikky Soni (A-5) knew that offence of murder is likely to be committed by appellant Lalit Soni (A-2) and therefore in view of the aforesaid decisions of the Supreme Court in Masalti (supra), Sherey (supra), Musa Khan (supra), Nagarjit Ahir (supra), Pandurang Chandrakant Mhatre (supra) and Vijay Pandurang Thakre (supra), it would be unsafe to maintain the conviction of these four accused persons i.e. Laxman @ Lakki Tandi (A-1), Kaliya @ Yudhishthir Vibhar (A-3), King Kumhar (A-4) & Vikky Soni (A-5) for offence under Section 302 with the aid of Section 149 of the IPC.

Conclusion

28. In the result, since Lalit Soni (A-2) had intention but no knowledge that the injury caused by him is likely to cause death, his case would fall under Exception 4 to Section 300 of the IPC and that would completely satisfy the four necessary ingredients of Exception 4 to Section 300 of the IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. Therefore, in view of dictum of the Supreme Court in Arjun (supra), conviction of appellant Lalit Soni (A-2) under Section 302 read with Section 149 of the IPC as well as the sentences awarded to him by the learned trial Court are hereby set aside. Considering that there was no premeditation on the part of appellant Lalit Soni (A-2) to cause death of the deceased, but the injury caused by him was sufficient in the ordinary course of nature to cause death, he is convicted for offence punishable under Section 304 Part-II of the IPC and sentenced to undergo RI for ten years & pay fine of ` 3,000/-, in default of payment of fine to further undergo additional RI for one month. However, conviction and sentences under Sections 323 & 148 of the IPC are hereby maintained. The appellant is in jail from 13-5-2013.

29. In view of the aforesaid finding, conviction and sentences of Laxman @ Lakki Tandi (A-1), Kaliya @ Yudhishthir Vibhar (A-3), King Kumhar (A-4) & Vikky Soni (A-5) under Section 302 read with Section 149 of the IPC are set aside and they are acquitted of the said charge on the basis of benefit of doubt. However, their conviction and sentences for offences under Sections 148 & 323 read with Section 149 of the IPC are hereby maintained.

30. All the appellants are in jail. They shall be forthwith set at liberty, unless they are required in connection with any other case.

31. The appeals stand finally disposed of in aforesaid terms.

32. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellants are suffering the jail sentence.