Sharma, J.—This is an appeal by the accused Mangu, Jiwan and Dhulla sons of Rambuxa, Bhana S/o Part and Ganpat S/o Bhura against their conviction and sentence by the learned Additional Sessions Judge, Sikar by his judgment, dated, 1st January, 1957. Mangu, Bhana and Jiwan have been convicted u/s 302, I P.C. read with sec. 34 I.P.C. and sentenced to imprisonment for life. They have also been convicted u/s 148 and sec. 326 read with sec. 149, I.P.C and sentenced to 3 years R.I. each under each count. Dhulla and Ganpat have been convicted u/s 148 and sec. 326 read with sec. 149, I.P.C. and sentenced to 3 years R.I. each under each count. 2. The prosecution case was that on 28th June, 1955, Chandra S/o Sheo Buxa Gujar resident of village Harsh along with his mother Mst. Jarav was going towards village Harsh at about 9 A.M. to participate in a marriage ceremony at some Mahajans house. As they passed by the field called Kothi Khawaswali, which is also called as Jab land on account of being irrigated land they saw eight persons, viz, Mangu S/o Rambuxa, Bhana S/o Parta, Jiwan, Dhulla, Surja, Ganpat, Gopi and Mangu S/o Bhura ploughing the said field. This field was in the joint cultivation of Sheobuxa, father of Chandra and Rambuxa, father of the accused Mangu, Jiwan and Dhulla. Chandra asked Mangu S/o Rambuxa why he was ploughing the field when there was dispute about it. On this Mangu along with Jiwan and Bhana ran towards Chandra on the public way, where the latter was standing. The three accused fell upon Chandra and began to belabour him with lathis causing injuries to his head. Chandra fell down and Mst. Jarav fell upon him to protect him. The three accused, however, pushed her aside and belaboured her also with lathis The remaining 5 accused, namely, Dhulla S/o Rambuxa, Ganpat S/o Bhura, Mangu S/o Bhura, Surja and Gopi also ran up and joined the first three. On hearing the cries of Mst. Jarav Kalu another son of hers came to the spot and intervened, but he was also belaboured with lathis. Other sons of Mst. Jarav, namely, Doonga, Bhola, Jaila, Rekha, Rameshwar and her husband Sheobuxa also heard the cries and rushed to the spot. On hearing the cries of Mst. Jarav Kalu another son of hers came to the spot and intervened, but he was also belaboured with lathis. Other sons of Mst. Jarav, namely, Doonga, Bhola, Jaila, Rekha, Rameshwar and her husband Sheobuxa also heard the cries and rushed to the spot. With the exception of Sheobuxa all the other last named persons came armed with lathis or sticks and as soon as they reached the spot there was free fight between both the parties and members of both the parties received injuries. 3. After beating Chandras party the accused returned to the field and from there they ran towards Sikar. Chandra immediately succumbed to his injuries. Injuries were also caused to Rameshwar, Sheobuxa, Doonga, Jaila and Bhola and Mst. Jarav. 4. First Information Report of the occurrence was made by one Dilsukh S/o Bhura Gujar at Sikar Police Station at about 1 P.M. As the report disclosed a case u/s 302, special report was sent by the Sub-Inspector-incharge of the police station to the Superintendent and Deputy Superintendent of Police concerned. The S.I. incharge then took the statement of Dilsukh. Immediately after the Superintendent and Deputy Superintendent of Police came to the police station, the S.I. in the company of them went to the scene of the occurrence and reached there at about 4 P.M. The police party found the dead body of Chandra lying on the public way just near the disputed field. This public way led from Devgarh to Harsh. He also found the following relations of the deceased on the spot—Kalu, Bhola, Surja, Rekha, Jaila and one other. Most of the persons sitting there were found injured. The S.I. prepared the site map and the site notes which are Exs. P. 15 and 15A on the record. He took some blood stained earth from the place where the dead body of Chandra was found lying and prepared a separate note in respect of it, and it is Ex. P., 16 on the record. He held the inquest and prepared panchayatnama relating to the dead body of Chandra and it is Ex. P. 6 on the record. Thereafter he took the statements of injured persons and sent the dead body of Chandra for post-mortem examination to Sikar hospital. Other injured persons of the prosecution party were also sent for examination and treatment. He held the inquest and prepared panchayatnama relating to the dead body of Chandra and it is Ex. P. 6 on the record. Thereafter he took the statements of injured persons and sent the dead body of Chandra for post-mortem examination to Sikar hospital. Other injured persons of the prosecution party were also sent for examination and treatment. Then Surja, Ganpat and Gopi accused were arrested from their houses. When he returned to the police station at about 7 P.M. he found four of the remaining accused, namely, Mangu S/o Rambuxa, Dhulla, Jiwan and Bhana sitting there. He immediately took them into custody and prepared the memos of their arrest. The memos of arrest of the above 7 accused are Exs P. 17 to 23 on the record. He received the blood-stained clothes of Chandra deceased from Head Constable Madan Singh who had taken Chandras dead body to the hospital. He prepared sealed packets of the bloodstained earth and the blood stained clothes on 28th June, 1955 and 29th June, 1955 for being sent to the Chemical Examiner, Jaipur and they were sent to the Chemical Examiner through constable Bhanwar Singh. 5. It is said that on 30th June, 1955 the accused furnished information as to the presence of lathis in their houses and in pursuance of that information the seven accused produced 7 lathis from their respective houses and seizure memos Exs. P. 7 to, 13 were prepared in respect thereof. After further investigation and the arrest of the remaining accused Mangu s/o Bhura the case was challenged in the court of the S.D.M., Sikar against all the eight accused u/s 302 read with sec. 149 and sec. 148, I.P.C. 6. A report was lodged on behalf of the accused party also against the complainants party and the accused were also medically examined. Sheobuxa Kalu, Bhola, Doonga, Jaila, Rekha, Rameshwar and Mst. Jarav of Sheobuxas party were challaned u/s 307, I.P.C. and riot sections. 7. The case was subsequently transferred to the court of the Extra Magistrate First Class, Sikar who committed all the accused to take their trial in the court of the Additional Sessions Judge, Sikar u/ss. 148 and 302 read with sec. 149, I.P.C. The accused in the cross case were also committed to take their trial u/s 307 and some other sections. 8. All the accused denied the charge. 148 and 302 read with sec. 149, I.P.C. The accused in the cross case were also committed to take their trial u/s 307 and some other sections. 8. All the accused denied the charge. The defence of Surja, Mangu and Gopi was that off alibi. The defence of four of the accused, namely, Mangu s/o Rambuxa, Bhana, Dhulla and jiwan was that the field in dispute had been in possession of Rambuxa, Mangu and a few other—sons of Rambuxa who had been cultivating it since long and that Sheobuxa had nothing to do with it. On the morning of the date of the occurrence these four accused were ploughing the field when Sheobuxa, his wife Jarav and his sons, Chandra, Rekha, Bhola, Jaila and others, in all 9 persons, came to the disputed field armed with lathis. They had brought three ploughs also with them. Immediately on their coming some of them entered the field through the gali and some jumped into the field from over a fence and started beating Mangu. Ganpat accused then came to the spot and asked the parties not to fight, but he was also injured by the party of Sheobuxa. 9. Ganpats defence is that he went to intervene when he was himself beaten by the party of Sheobuxa. 10. A number of witnesses were produced on behalf of the prosecution party againts the accused. Kalu P.W. 3, Jaila P.W. 4, Bhola P.W. 5, Doonga P.W. 6, Mst. Jarav P.W. 8, Rameshwar P.W. 9, and Sheobuxa P.W. 10 are the persons who were themselves injured Reikha is one of the sons of Sheobuxa who is said to have run to the rescue of his brothers when they were being beaten. Among the eye-witnesses there is only one person Ladu P.W. 2 who was neither injured nor belonged to the family of Sheobuxa. The prosecution sought to prove that the field in dispute has been in possession of both the parties since before the date of the occurrence. Learned Additional Sessions Judge was satisfied by the evidence of the eye-witnesses for the prosecution that the fight ensued as alleged by the prosecution. He found that only five of the accused, namely, Mangu s/o Rambuxa, Bhana, Jiwan, Ganpat and Dhulla were proved 10 have taken part in the beating of the party of Sheobuxa. Learned Additional Sessions Judge was satisfied by the evidence of the eye-witnesses for the prosecution that the fight ensued as alleged by the prosecution. He found that only five of the accused, namely, Mangu s/o Rambuxa, Bhana, Jiwan, Ganpat and Dhulla were proved 10 have taken part in the beating of the party of Sheobuxa. He found all these 5 accused guilty u/s 148, IPC and also u/s 326, IPC by virtue of sec. 149. He however found Mangu s/o Rambuxa, Bhana and jiwan only guilty of the offence u/s 302 read with sec.149 IPC for the murder of Chandra. As regards the remaining three accused he felt doubt that they formed an unlawful assembly or took part in the beating and consequently acquitted them. The five convicted persons have come in appeal to this Court. 11. Before we take up the arguments of the learned counsel for the parties we may say here that the cross-case against Sheobuxa and his party ended in acquittal of the accused. 12. We have heard Sri J. K. Mathur on behalf of the appellants and Sri R. A. Gupta on behalf of the State. It has been argued by Shri Mathur on behalf of the appellants that the judgment of the lower court is vitiated by the fact that it is based not only on the evidence recorded in the present case, but also on the evidence recorded in the cross-case. It was argued that it cannot be said as to what extent the lower court was influenced by the evidence in the cross-case and, therefore, its judgment is liable to be set aside on this ground alone-It was further argued that the prosecution altogether failed to prove that Sheo-buxa had any possession of the field in dispute on or before the date of occurrence. It was argued that the evidence shows that the field had been in possession of Rambuxa and some of his sons only from before the occurrence and that Sheobuxas party had been making an attempt to interfere with their possession. The party of the accused therefore had to file a criminal complaint u/s 117, IPC against Sheobuxa and his sons only a few days before the occurrence. The party of the accused therefore had to file a criminal complaint u/s 117, IPC against Sheobuxa and his sons only a few days before the occurrence. It was the party of Sheobuxa who committed aggression on the date of the occurrence inasmuch as they went armed with weapons of offence to interfere with the possession of Rambuxa and his sons and not only threatened to criminally trespass on the field but also gave beating to the party of Rambuxa, and that the four accused Mangu, Bhana, Jiwan and Dhulla only dealt some blows to Chandra and other members of his family in the exercise of their right of private defence of property and person. So far as Ganpat is concerned it was argued that he had not given beating to anybody. It was argued that all the accused deserve to be acquitted. In any case it was argued that none of the accused could be convicted by virtue of sec. 34, IPC as the prosecution has failed to prove that Chadra was belaboured in pursuance of the common intention of Mangu and others. It was argued that no common unlawful object of the party of Rambuxa has been proved and consequently the offence of rioting and any other offence by virtue of sec. 149, IPC could not be held to have been committed. Mr. Mathur also argued that in the beginning Dilsukh PW 1 and one Binja were also mentioned as eye-witnesses, but as their evidence would have damaged the prosecution subsequently the position was taken that they had not witnessed the occurrence. 13. On behalf of the State Sri Gupta has argued that there was voluminous direct evidence on the record to prove that the appellants were aggressors and that they not only caused various injuries with the common object of beating the party of Sheobuxas but also caused the death of Chandra in pursuance of the common intention of beating Sheobuxas party. All the accused were, therefore, rightly convicted of the various offences. It was argued that Dilsukh and Binja were not eye-witnesses as has been proved by the evidence on the record and, therefore, the learned Additional Sessions Judge has rightly held that they were not eye-witnesses of the occurrence 14. We have considered the arguments of both the learned counsel. All the accused were, therefore, rightly convicted of the various offences. It was argued that Dilsukh and Binja were not eye-witnesses as has been proved by the evidence on the record and, therefore, the learned Additional Sessions Judge has rightly held that they were not eye-witnesses of the occurrence 14. We have considered the arguments of both the learned counsel. On a reading of the judgment of the learned Additional Sessions Judge we are certainly of opinion that he has taken some of the evidence of the cross case into consideration in convicting the accused in this case. Take, for example, the F. I. R. in the cross case. We have not been able to find that document on the record of this case. Evidently the learned Additional Sessions Judge has made use of this document from the record of the cross-case In para 21 of his judgment he has gathered the defence of the accused in this case from the F. I. R. made by Mangu in the cross-case. He has given the summary of that document in this paragraph. The difficulty has arisen from the fact that the learned Additional Sessions Judge has given a single judgment in both the cases. The correct procedure in the trial ci cross-cases should be that both the cases should be tried separately although by the same Judge and separate record should be prepared for each case. The judgments should be separately given and they should be based on the evidence on the record of that case alone. By giving a single judgment in two cross-cases there is likelihood of confusion that evidence in one case might be acted upon in the other. This is what appears to have happened in this case. Although we find that the learned Additional Sessions Judge has tried his best in each case to refer to the evidence produced in that case alone but he has not been able to be on the guard throughout and as has been said above in some places he has referred to the material of one case in arriving at the finding in the other case. It has been observed in the judgment of a Division Bench of Bombay High Court in Banappa Kallappa Ajawan vs. Emperor (1) that "the most desirable procedure in such cases (cross-cases) would be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case." It is therefore necessary for a trial court to prepare separate record for each of the two cross-cases and base Its judgment only on the evidence in that case & not on that of cross-case. The question, however, is whether, where the trial court makes some use of the evidence in one cross-case in the other, the judgment and order of it must be altogether set aside. This depends upon the circumstances of each case. In some cases evidence in one cross case may be used in the other to such an extent that if that evidence is disregarded the order of the lower court might not stand only on the evidence of that case. In some cases although the evidence in one case may be used in the decision of the other but after discarding that evidence the evidence in that particular case alone might be sufficient to support the order of the trial court. In some cases although the evidence in one case may be used in the decision of the other but after discarding that evidence the evidence in that particular case alone might be sufficient to support the order of the trial court. It has been observed by Oudh Chief Court in case Debidayal vs. Emperor through Baburam (2) that "where two cases are tried by the same Magistrate and the evidence in one case is acted upon in the other, the procedure is a mere irregularity and unless the accused bus been prejudiced by reason of the evidence in the cross-case being acted upon, the trial should not be set aside." In that case the accused were held not to be prejudiced at all by the consideration of evidence in the other cross-case and therefore their conviction was upheld. 15. We perfectly agree with the observation of Bombay High Court and Oudh Chief Court in the above two cases and proceed to scrutinise the evidence of the present case relied upon by the learned Additional Sessions Judge in order to find out if the judgment of the learned Additional Sessions Judge in the present case can be sustained. 16. We may say at the out-set that the finding of the learned Additional Sessions Judge that Dilsukh and Binja were not eye-witnessess of the occurrence and that their statements before the police with which they were confronted at the trial were not the result of faithful recording by the police is not at all acceptable to us. Learned Additional Sessions Judge has said that the report Ex. P. 4 made by Dilsukh and his statement recorded by the police u/s 161, Cr.P.C. are altogether irreconcilable. On a careful reading of the two documents we do not think that this is so. It is of course true that the report Ex. P. 4 is a concise document whereas the statement of Dilsukh before the police Ex. D. JO was much more detailed but this very often happens in criminal cases. The F.I.R. is mostly lodged in the hurry of the moment with a view to help police take immediate steps to investigate the case. Statements u/s 161, Cr.P.C. are recorded by the police in order to find out correct facts and are very often detailed. That is why the statement Ex. The F.I.R. is mostly lodged in the hurry of the moment with a view to help police take immediate steps to investigate the case. Statements u/s 161, Cr.P.C. are recorded by the police in order to find out correct facts and are very often detailed. That is why the statement Ex. D 10 of Dil Sukh is not as concise as the statement in the F.I.R Ex 4. The only material omission which we find in the report Ex 4 is that the names of Mst. Jarav, Sheobuxa and Rekha among the party of Sheobuxa are not given therein, but in the statement Ex. D. 10 the names of these three have also been added. However at the trial the presence of these three persons along with the six mentioned in both the documents has been shown at the time of the occurrence. It cannot therefore be said that Ex. D. 10 on that account is a spurious document. Learned Additional Sessions Judge has said that there was no necessity to the Investigating Officer to record the statement of Dilsukh. We do not think why it was unnecessary. First Information Report is made by the informant and thereafter the police embarks upon investigation. During investigation police has to find what is the direct evidence. From the F.I.R. Ex. 4 it could not be clear as to whether Dilsukh was an eyewitness and therefore if in order to find out if he and seen the occurrence with his own eyes, the Investigating Officer recorded his statement, it cannot be said that it was due to an ulterior motive. As a matter of fact it was very necessary that the statement of the person who made a very concise statement in the F.I.R. should be recorded in order to find out whether he has personal knowledge of the occurrence. Learned Additional Sessions Judge has remarked that the statement Ex. D. 10 does not bear the signatures of Dilsukh We presume that the learned Additional Sessions Judge was aware of the provisions of sec. Learned Additional Sessions Judge has remarked that the statement Ex. D. 10 does not bear the signatures of Dilsukh We presume that the learned Additional Sessions Judge was aware of the provisions of sec. 162, Cr.P. C. which lay down that no statement made by any person to a police officer in the course of an investigation under Chapter V shall, if reduced into writing, be signed by the persons making it Thus there is an express prohibition against the getting of the signatures of a witness during investigation on the statement recorded by the Investigating Officer. Learned Additional Sessions Judge should not have therefore drawn any adverse inference from the fact of the statements not being signed. As the witnesses were confronted at the time of trial with their statements recorded before the police, we have gone through them. They are Exs. Dl, (statement of Ladu), D3 (statement of Jaila), D4 (statement of Doonga), D5 (statement of Rekha), D6 (statement of Mst. Jarav), D7 (statement of Kalu), D8 (statement of Bhola), D9 (statement of Rameshwar), D10 (statement of Dilsukh) and D11 (statement of Binja). These statements do not show as if they have been manufactured by the Investigating Officer. It appears as if what the witnesses had said had been taken down. Although all the witnesses denied that they had made these statements before the Investigating Officer yet they have been proved to be the statements of these witnesses by the evidence of Sri Ramkishan PW 14, Investigating Officer He has sworn that Ex. Dl is the statement of Ladu, D3 of Jaila, D4 of Doonga, D5 of Rekha, D6 of Mst. Jarav, D7 of Kalu, D8 of Bhola, D9 of Rameshwar and D10 of Dilsukh. He has sworn that the statement Ex. D 11 is of Binja. Prosecution did not bring out anything in the evidence of this witness to show that these statements were not the statements of the persons whose statements they purport to be and that they were the product of imagination of Sri Ramkishan. It was natural for Sri Ramkishan to examine the prosecution witnesses during investigation and it has not been shown that any other statements of these witnesses had been recorded, and they have been suppressed and these fabricated statements have been produced. We see no reason for Sri Ramkishan to make a false record of the statements of these witnesses. It was natural for Sri Ramkishan to examine the prosecution witnesses during investigation and it has not been shown that any other statements of these witnesses had been recorded, and they have been suppressed and these fabricated statements have been produced. We see no reason for Sri Ramkishan to make a false record of the statements of these witnesses. Learned Additional Sessions Judge has not clearly said that these statements were not the faithful record of the statements of the various witnesses he however appears to have been impressed by the argument of the prosecution that the Investigating Officer had introduced certain things at variance with the statements of the witnesses at the trial in their statements u/s 161 either through over-zealousness in pursuit of the difficult task of atonce trying to prove both cases as true and chellanging both the parties or under the influence of the accused Mangus party who were faced with the more serious charge of murder. This argument of the posecution has been taken rote of in para 18 of the judgment by the learned Additional Sessions Judge. After referring to this argument of the prosecution the learned Judge observes as follows :— "It is no doubt a complicated task for the police to steer the right course in cross-cases of rioting where the accused in one case are the prosecution witnesses in the other. But if their investigation, as is suggested, gets coloured and tainted by extraneous considera tions, it only adds to the complication. In such cases, the need of the court is very much enhanced to apply stricter scrutiny to the evidence presented by both sides." The rejection of those portions of the various witnesses before the police which were in conflict with their statements at the trial along with the above remark of the learned Additional Sessions Judge goes to show that he was influenced by the above stated argument of the prosecution that those portions of the statements where it has been said that the party of Sheobuxa went to the spot armed with lathis and with three ploughs and that Dilsukh and Binja had witnessed the fight were not the record of the statements of these witnesses but were introduced by the Investigating Officer himself due to ulterior motives. We must atonce s|ay that this view of the learned Additional Sessions Judge was very uncharitable. We must atonce s|ay that this view of the learned Additional Sessions Judge was very uncharitable. The police has to perform a very difficult task of detecting culprits. | Ordinarily it is to be presumed that whatever they have done was done honestly and faithfully. There should be strong reasons to show that the record prepared by the police was false and imaginary. No reasons have been shown in the present case excepting that the report is a very brief one whereas the statements of the witnesses are somewhat detailed and certain persons of the prosecution party, who have been mentioned in these statements, were not mentioned in the police report, and no mention of the ploughs of Sheobuxas party has been made in the F.I.R. To our mind these reasons did not justify that the police statements were falsely prepared. It it well known that First Information Reports are often very brief as they have to be made in the heat of the moment in order to obtain police help at the earliest possible moment in the detection of the crime. At that time it is not expected that every detail would be given. Whenever any such details are given the courts are sometimes forced to observe that the reports were not spontaneous and were made after due deliberation. The brevity of the report was therefore no reason for holding that the record of the statements of the prosecution witnesses by the police was unreliable. Then the fact that the ploughs of Sheobuxas party were not mentioned was also no reason for holding the statements to be false or exaggerated record. The report clearly says that six persons of Chandras party went to the field. Obviously, it suggests that they went to plough it and does not made it unbelievable that Sheobuxas party had taken their ploughs with them. The fact that the names of Sheobuxa, his wife and Rekha are not mentioned in the F.I.R. is also no reason for the rejection of the statements of the witnesses before the police. Even at the trial it has been stated by the prosecution witnesses that these three persons were present when the occurrence took place. The fact that the names of Sheobuxa, his wife and Rekha are not mentioned in the F.I.R. is also no reason for the rejection of the statements of the witnesses before the police. Even at the trial it has been stated by the prosecution witnesses that these three persons were present when the occurrence took place. If therefore there is any defect it is in the F.I.R. and not in the statements of the prosecution witnesses before the police in which all the 9 persons of Sheobuxas party have been mentioned. The fact that it is not mentioned in the F.I.R. or in the statements of the witnesses that Chandra and his mother Jarav were going to Harsh is more a reason to disbelieve the evidence of the prosecution witnesses that these two persons were going to Harsh to join a marriage than to reject the F.I.R. or the statements of these witnesses before the police. It is common experience that sometimes the prosecution witnesses give a true story before the police when their statements are recorded immediately after the occurrence and they have no opportunity for deliberation and consultation, but as the case proceeds the parties make improvement and exaggerations in their favour. We are therefore of opinion that the prosecution evidence so far as it shows that Dilsukh and Binja were not eye-witnesses and Sheobuxas party had not gone to the field in dispute to plough it taking lathis and ploughs and that Mst. Jarav and Chandra were going to attend the marriage party at Harsh is not believable. The question however is whether rejecting those portions of the evidence which are inconsistent with the statements of the prosecution witnesses before the police or the statements in the F.I.R. an offence of murder or any other offence against all or any of the appellants has been made out. Before discussing the evidence we might set out points for determination in this appeal. They are as follows:— (1) Whether the party of Mangu accused consisted of five or more persons? (2) Whether this party had unlawful common object within the meaning of sec. 141, I.P.C. and consequently formed an unlawful assembly? (3) Which if any of the appellants was member of that unlawful assembly? (4) Did this unlawful assembly commit any riot? They are as follows:— (1) Whether the party of Mangu accused consisted of five or more persons? (2) Whether this party had unlawful common object within the meaning of sec. 141, I.P.C. and consequently formed an unlawful assembly? (3) Which if any of the appellants was member of that unlawful assembly? (4) Did this unlawful assembly commit any riot? (5) Which if any of the members of this unlawful assembly was armed with a deadly weapon at the time of the riot? (6) Which offence or offences if any was or were committed 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? (7) Whether an offence of murder was committed by any two or more of the appellants in furtherance of their common intention? (8) Did the appellants or any one of them commit any offence in the exercise of the right of private defence of property or person and if so did they or any of them exceed that right? Before we take up these points one by one we may say at the outset that it has been established not only by the evidence of Ladu PW2, Kalu PW3, Jaila PW4, Bhola PW 5, Doonga PW 6, Rekha PW 7, Mst. Jarav PW 8, Rameshwar PW 9 and Sheobuxa PW 10 of whom all excepting Rekha had received injuries in the fight that took place between Sheobuxas party on one side and Mangus (Ram-buxas) party on the other, but it is also admitted by the defence. Therefore there does not remain the least doubt that there was fight between the two parties. It has also been proved by medical evidence that some of the members of Mangus arty including Mangu himself received injuries. This gives additional strength to the fact that there was fight between the two parties. It is also established not only by the evidence of the above prosecution witnesses but has also been admitted by the defence that Chandra and other 8 persons of Sheobuxas party were present at the fight. This has been admitted by the defence also. There is also the evidence of both the parties that the 5 appellants received the injuries at the fight. This has been admitted by the defence also. There is also the evidence of both the parties that the 5 appellants received the injuries at the fight. All the appellants excepting Ganpat were medically examined on 28th June, 1955 and injuries were found on their bodies by the medical examiner. It is therefore firmly established that nine persons of Sheobuxas party including Chandra deceased and 4 of the party of Mangu participated in the fight. Ganpat also received injuries but his defence is that he came later on in order to intervene in the fight between the nine persons of Sheobuxas party and 4 of Mangus party. We would consider his case when we deal with the above points seriatim, which we now proceed to do:— (1) Whether the party of Mangu accused consisted of 5 or more persons? 17. It has been held by the learned Additional Sessions Judge that all the accused of Mangus party who were challenged were present at the fight. He has however acquitted all excepting the five appellants of all offences. We will therefore not go into the matter whether the accused who have been acquitted participated in the fight or not and would confine our attention only to the five appellants. It has been said just above that the prosecution evidence is unanimous that the 5 appellants were present at the fight. They had also received injuries. On behalf of the defence also it is admitted that these 4 appellants were presents at the fight. The difference between the prosecution and t|he defence is only with respect to Ganpat. The prosecution evidence is unanimous that he also participated in the fight whereas the defence of Ganpat is that he came later on in order to intervene. The prosecution evidence of course has not given out the truth when it has stated that Dilsukh and Binja were not the eye-witnesses and that all the 9 persons of Sheobuxas party including Chandra deceased had gone to the spot with three ploughs in order to plough the field in dispute in the morning of the occurrence. In their statements before [ the police they have unanimously deposed that Binja and Dilsukh were also among the eye-witnesses and that Chandras party consisting of 9 persons had gone to the field in dispute with three ploughs to ploughs it. In their statements before [ the police they have unanimously deposed that Binja and Dilsukh were also among the eye-witnesses and that Chandras party consisting of 9 persons had gone to the field in dispute with three ploughs to ploughs it. It has already been stated above that the learned Additional Sessions Judge was not justified in saying that the statements recorded by the police were not the versions given by the prosecution witnesses before the police. We have disagreed with this view of the learned Additional Sessions Judge and are of opinion that the statements recorded by the police with which the prosecution witnesses were confronted were the statements given by them before the police and were not concocted by the investigating agency. But the maxim "falsus in uno, falsus in omnibus" cannot be applied to this country, It has often been seen that most of the witnesses for one party while giving out substantial truth introduce one or two falsehoods or exaggerations into their statements. If the courts were to act upon the above maxim it will be very difficult if not impossible, to decide majority of cases correctly. The courts are therefore called upon to very carefully scrutinize the evidence produced before them and separate chaff from the grain and sift out truth from falsehood. Any number of rulings may be quoted in which this principle has been laid down but we need refer only to a ruling of this Court in Bhaga Bharti vs. Sarkar (3). It was observed that— "if a whole body of testimony were to be rejected because the witnesses were evidently speaking untruth, in one or more particulars, it is to be feared that witnesses might always be dispensed with as in a majority of cases, the evidence of a witness may be found to be tainted with falsehood." It was held that— "the salutary principle on which the Courts should work is that in such cases the evidence should be sifted carefully, grain separated from chaff and only that portion accepted which is found to be true and the rest rejected. Where the falsehood is merely an embroidery to a story, that would not be enough to discredit the whole of the witnesss evidence." 18. Where the falsehood is merely an embroidery to a story, that would not be enough to discredit the whole of the witnesss evidence." 18. It is of course true that in some cases it is not possible to extricate truth from falsehood and it becomes difficult for the court after applying all checks as to which portion of the statement of a witness is true and in such cases courts are compelled to reject the testimony of the witness altogether, but in some cases after applying checks the court can find out truth from falsehood and if that can be done there is no reason why that statement of the witness should not be believed about the veracity of which the court is fully satisfied. 19. Learned Additional Sessions Judge has very carefully considered the evidence of all the prosecution eye-witnesses. He was not unmindful of the fact that all the witnesses excepting Ladu were close relations of Chandra deceased and were interested in the prosecution. Of course he has erred so far as he believed the evidence of these witnesses about the absence of Dilsukh and Binja from the scene of the occurrence at the time it took place and he has also erred in holding that it was not correct that the party of Sheobuxa went to the spot with three ploughs armed with lathis. This portion, as has been said, could not be believed in face of the statements before the police with which all these witnesses were confronted. However, so far as the fact about the persons taking part in the fight from the side of the accused is concerned the statements of all the prosecution witnesses who numbered no less then 9 have been consistent. Learned counsel for the appellants could not point out anything in the evidence of these witnesses at the trial which was not consistent with their previous statements in this respect. Ganpat also as has been said, had injuries. Therefore it cannot be doubted that he was also among the fighters on the side of Mangu. Learned counsel for the appellants could not point out anything in the evidence of these witnesses at the trial which was not consistent with their previous statements in this respect. Ganpat also as has been said, had injuries. Therefore it cannot be doubted that he was also among the fighters on the side of Mangu. The evidence about the presence of Surja, Mangu S/o Bhura and Gopi Pandey is also consistent, but we need not examine whether they actually participated in the fight because even without them the number of the fighters on the side of Mangu was five and, therefore, if this party had unlawful object within the meaning of sec. 141, I.P.C., it can be held to form an unlawful assembly. 20. We, however, hold quite definitely that Surja, Mangu S/o Bhura and Gopi Pandey were also present in the party of Mangu at the time of the occurrence, but do not wish to say whether they took part in the fight because they have been acquitted by the learned Additional Sessions Judge and it might be said that on account of the absence of any injuries on their person the learned Additional Sessions Judge was not quite unjustified in giving the benefit of doubt so far as their actual participation in the fight is concerned. points Nos. 2, 3, 4 and 8. (2) Whether this party had an unlawful common object within the meaning of sec. 141, I.P.C. and consequently formed an unlawful assembly? (3) Which if any of the appellants was member of that unlawful assembly? (4) Did this unlawful assembly commit any riot? (8) Did the appellants or any one of them commit any offence in the exercise of the right of private defence of property or person and if so did they or any of them exceed that right? 21. These four points may be dealt with together. For an unlawful assembly it is necessary that it should consist of 5 or more persons and should have a common unlawful object. It has already been held above that there was an assembly of at least five persons. As regards unlawful object it has been proved by the evidence of Ladu P. W. 2, Kalu P. W. 3 and Mst. It has already been held above that there was an assembly of at least five persons. As regards unlawful object it has been proved by the evidence of Ladu P. W. 2, Kalu P. W. 3 and Mst. Jarav P. W. 8 that as soon as Chandras party came to the path way leading to the field in dispute Chandra protested against the accused ploughing the land in dispute and on hearing this Mangu appellant along with Jiwan and Bhana appellants ran towards the party of Chandra which was standing on the path way. All these three accused had lathis in their hands. At first Mangu dealt a lathi blow to Chandra on his head and thereafter Bhana and Jiwan also dealt lathi blows on the head of Chandra who fell down. Thereafter a fight ensued between the party of Chandra which consisted of Kalu, Bhola, Jaili, Doonga, Rameshwar, Reihka and Sheobuxa on one side and Mangus party which consisted of Mangu, Jiwan, Bhana, Ganpat and Dhulla and different persons of both the parties received injuries. In finding out whether the accused appellants had any unlawful common object in giving beating to Chandras party or they acted in the right of their private defence of property, it is very material as to where the fight took place. If the fight took place inside the field Khawaswali or just at its entrance it might be said that the accused had some right to pre-vent Chandras party from entering into the field and for that they could use necessary force. It is the case of the accused appellants that Rambuxa and his sons had been in possession of the field in dispute for a long time before the occurrence took place. It is not denied by the prosecution. All that is asserted by the prosecution is that both the parties had been in possession of the field in dispute. Thus the possession of Rambuxa and his sons is admitted even by the prosecution. What the prosecution does not admit is the exclusive possession of Rambuxa and his sons. If therefore Sheobuxa and his sons had any right of joint possession in the field in dispute they were not entitled to enforce that right by means of force. They had their remedy by way of partition or by a suit for possession in court. What the prosecution does not admit is the exclusive possession of Rambuxa and his sons. If therefore Sheobuxa and his sons had any right of joint possession in the field in dispute they were not entitled to enforce that right by means of force. They had their remedy by way of partition or by a suit for possession in court. It can therefore be said that when Chandras party went to the spot armed and with ploughs for the purpose of ploughing the field in dispute against the will of Rambuxa and his sons they were unjustified. But even if it be supposed that Rambuxa and his sons were in exclusive possession of the property in dispute and Sheobuxa and his sons had no possession of any sort, all that the former were entitled to was to prevent Chandras party by necessary force from making a criminal tresspass upon the field. They were not entitled to go out of the field into the path way and begin beating Chandras party. It has been argued that from the statements of the various prosecution witnesses before the police it appears that Mangus party used force only when Chandras party attempted to enter into the disputed field. It is true that some of the prosecution witnesses in their statements before the police had deposed that when Chandra attempted to enter the field he was given beating by Mangu, Bhana and Jiwan appellants. These witnesses were not confronted with these p>rtions of their statements at the trial and therefore they cannot be legally taken into consideration. It may be that these witnesses had some hazy idea and used the word field in place of the word gali. Other witnesses have stated that Chandra was given beating when he attempted to enter the gali. All the witnesses have been consistent in their statements that Mangu, Jiwan and Bhana appellants had come out of the field into the gali and gave beating to Chandra when he was still in the gali. The dead body of Chandra was also found by the Investigating Officer into the gali and not inside the field. The appellants have tried to explain it by saying that Chandra was taken out of the field in dispute after he had been injured and that he was first taken to the field of Bhurawali and thereafter he was brought and placed into the gali. The appellants have tried to explain it by saying that Chandra was taken out of the field in dispute after he had been injured and that he was first taken to the field of Bhurawali and thereafter he was brought and placed into the gali. This statement of the defence witnesses is altogether unbelievable. Mangu accused who examined himself as D.W. 8 said in his evidence that Bhura, and Munna prevented Chandra and his party from coming into the field but they did not listen to it and entered the field and after they had so entered, Chandras party began dealing lathi blows to Mangus party at the instigation of Mst. Jarav. He was confronted with his statement in the committing court in the cross-case and there he had clearly stated that Chandra fell down in the gali. This proves the falsity of the statement of Mangu that Chandra had entered the field and he was given beating there. Munna D.W. 7 stated that on seeing Chandras party he and Bhura went to tell them not to fight but they did not listen to it and entered the disputed field. He stated in cross-examination that he had gone to a distance of about 30 double places outside the field in dispute when he met Chandras party who not listening to What he said entered the field but the witness kept standing outside. Binja D.W. 4 stated that Munna and Bhura having been Chandras party went outside the field to prevent them but in the meantime all the nine persons of Chandras party had reached the gali and although Bhura and Munna told them not to enter the field yet they did not listen to it and jumped over the thorn fence into the field. He says that thereafter Chandra and Kalu dealt lathi blows to Mangu and then the fight flared up between the two parties. He says in cross-examination that Bhura and Munna who had gone to prevent the nine assailants Sheobuxa and others did not go outside the field but stood inside it. This is against the evidence of Manna who had stated that be went to a distance of about 30 pawandas (double paces) outside the field when he met them. Binja says that after Chandra had received injuries, he walked out of the field on foot while going to the field Bhurawali. This is against the evidence of Manna who had stated that be went to a distance of about 30 pawandas (double paces) outside the field when he met them. Binja says that after Chandra had received injuries, he walked out of the field on foot while going to the field Bhurawali. The falsity of this witness is exposed by the evidence of Mangu himself who stated that he had left Chandra and others of his party lying injured on the field when he left for Sikar. Begla D.W. 3 has also stated that Chandra had fallen down inside the field. Bhura D.W. 2 stated that he and Munna had gone out of the field and asked Chandras party not to enter the field else there might be a fight. Rugha D.W. 1 stated that the party of Chandra leaving the ploughs outside the field in the gali entered the field and started beating Mangu and others who were ploughing. In cross-examination he said that although Mangu and others fell down on the ground on receiving blows and were again and again getting up Chandra never fell down in the field and that the witness did not see him receiving any injury. This is a patent lie because Chandra was fatally injured on head and it would not have escaped the notice of this witness that Chandra had received injuries. He admitted that the dead body of Chandra was lying on the path way near the field in dispute when the police arrived. From the evidence of these defence witnesses it would appear that they have tried to suppress the truth and some of them have given deliberate lies when they said that Chandra walked out of the field after receiving the injuries. As a matter of fact the fact is as given by the prosecution witnesses and supported by the dead body of Chandra and blood stains being found in the path way when the police arrived that Chandra was attacked while he was at a distance of several paces from the entrance of the field in dispute in the public path way. This being established that Chandra was attacked outside the field in the public path way about several paces from the field in dispute it becomes clear that even if Mangus party had any right of private defence of property it had not commenced when Chandra was attacked. This being established that Chandra was attacked outside the field in the public path way about several paces from the field in dispute it becomes clear that even if Mangus party had any right of private defence of property it had not commenced when Chandra was attacked. The sections of the Indian Penal Code which deal with right of private defence of property are secs. 97, 99 and 105 Sec. 97 gives to every person the right subject to the restrictions contained in sec. 99 to defend the property whether movable or immovable of himself or any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery, mischief or criminal trespass. Sec. 99 so far as relevant to this case says that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authority and that the right to private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Sec. 105 says that the right of private defence of property commences when a reasonable apprehension of danger to the property commences and continues against criminal trespass or mischief as long as the offender continues in the commission of criminal trespass or mischief. It has been held above that Chandras party had neither entered the field in dispute nor had reached the entrance of the field when Mangu, Jiwan and Bhana appellants stopped them and gave them beating. It cannot therefore be said that Chandras party had committed any act of criminal trespass or attempted to commit the offence of criminal trespass when Mangus party attacked it. From the fact that Mangu, Bhana an Jiwan met Chandras party on the path way several paces outside the field and as sons as Chandra protested they began beating him, it would be clear that they were bent upon beating upon Chandras party rather than defending their property. They were determined to fight and commit violence on the party of Chandra even before any actual commission of the offence of criminal trespass or any attempt to commit such an offence had begun. They were determined to fight and commit violence on the party of Chandra even before any actual commission of the offence of criminal trespass or any attempt to commit such an offence had begun. When a party is determined to fight the question whether the determination to fight is from the motive to defend ones property or from the motive of causing injury to the adversary is immaterial. It may be said of Chandras party that when they went to the spot with three ploughs and armed, they were also inviting trouble and were determined to \ indicate their rights or supposed rights by unlawful force, but from the evidence and circumstances of this case discussed above the same can be said of Mangus party It was held by a Division Bench of Allahabad High Court in Queen Empress vs. Prag Dat (4) that— "when a body of men are determined to vindicate their rights of supposed rights by unlawful force and When they engage in a fight with men who, on the other hand, are equally determined to vindicate by unlawful force their rights or supposed rights, no ques tion of self defence arises." In that case there was dispute between the two parties over strip of waste land. One party asserted that the land appertained to a grove which admittedly belonged to that party. The other party maintained that the disputed land was part of their cultivation which as a fact did adjoin it. A number of persons of one party and a certain number of the other went to the spot. The party which claimed the disputed land to be part of their cultivation gave orders for the demolition of a thaonla or a mud wall round a need tree and upon this the other party interfered and begged that the matter be referred to Court. Words ensued, then, blows, and almost immediately one of the party of the grove-holders fired at one of the party who claimed the land to be a part of their cultivation, and shot him dead on the spot. It was held that— "the seven accused did go down to the field with the intention of enforcing their rights, or supposed rights, by show of criminal force, and if need arose by use of criminal force and that they thus were members of an unlawful assembly and that force was used. It was held that— "the seven accused did go down to the field with the intention of enforcing their rights, or supposed rights, by show of criminal force, and if need arose by use of criminal force and that they thus were members of an unlawful assembly and that force was used. All the accused were guilty of the offence of rioting." The evidence in this case shows that there was no crop standing in the disputed field at the time of the occurence and the first rain having fallen the party of the accused bad gone on the field to plough it for the first time in the season. No mischief could have been done if the appellants had waited on the field in dispute and not gone outside several paces to beat Chandras party. At the stage the accused attacked Chandras party there was no commission of criminal trespass nor was there any attempt to trespass criminally on the field. Their going out of the field armed with lathies and giving beating to Chandra and his party as soon as Chandra protested shows unmistakably that they had an unlawful common object of giving a thrashing to Chandras party. It is an offence to cause hurt to any person or to assault him and within the meaning of clause 3 of S. 141, I.P.C., if the common object of the person composing the assembly of 5 or more persons is to commit an offence, the object is unlawful and the assembly is an unlawful assembly. Initially there were only three persons, namely, Mangu, Bhana and Jiwan, who attacked Chandra but afterwards Ganpat and Dhulla also came on the spot with lathies and all the five accused began to shower lathies on Chandras party. Even though at the stage Chandra was given a beating a riot may not be said to have been committed but thereafter when the five accused began showering lathies on Chandras party the assembly undoubtedly became an unlawful assembly with the common object of beating up Chandras party. It may be noted here that in all three injuries were caused to Chandra on or about his head and not less than 26 injuries were caused to other members of his party, some of them being on head and one of the injuries caused to one of the persons was a grievous injury. It may be noted here that in all three injuries were caused to Chandra on or about his head and not less than 26 injuries were caused to other members of his party, some of them being on head and one of the injuries caused to one of the persons was a grievous injury. This clearly shows that Mangus party was bent upon giving a sound beating to Chandras party rather than protect their rights or supposed rights with minimum force necessary. 22. Learned counsel for the appellants argued that the accused gave a beating to other persons of Chandras party only when Chandras party had begun to beat Mangus party. In the first instance the prosecution evidence shows and there is no reason to disbelieve it that Chandras party used force only when the 5 appellants had begun to beat Chandras party. But even if if be said that after Chandra had been belaboured by Mangu, Bhana and Jiwan appellants, Chandras party used force with Mangus party and then the two accused Ganpat and Dhulla came and belaboured Chandras party, there would be no difference because Mangu, Bhana and Jiwan appellants had been aggressors and no question of right of private defence of their person arose in the circumstances. Whosoever therefore joined in the beating of Chandras party was equally guilty of riot. Our answer to these four points is that the five appellants, Mangu, Jiwan, Ganpat and Dhulla were members of an unlawful assembly, the common object of which was to give beating to Chandras party and that this unlawful assembly committed riot. The force used by this assembly was not in the exercise of the right of private defence of property or person. Points No. 5—Which if any of the members of this unlawful assembly was armed with a deadly weapon at the time of the riot ? The prosecution evidence is unanimous that all the accused appellants were armed with lathis. It is not denied by any of the appellants excepting Ganpat that they had some weapons of violence with them. However we do not think that unless it is proved beyond doubt as to what was the nature of those lathis, it cannot be said that they were necessarily deadly weapons. It is not denied by any of the appellants excepting Ganpat that they had some weapons of violence with them. However we do not think that unless it is proved beyond doubt as to what was the nature of those lathis, it cannot be said that they were necessarily deadly weapons. Although from the prosecution evidence we are satisfied that all the five appellants were armed with lathis at the time of the riot, we do not agree with the learned Additional Sessions Judge that it is proved that the appellants were armed with deadly weapons. For a conviction u/s 148, I.P.C. it is necessary that each person who is convicted for this offence should be proved to have been armed with deadly weapon at the time of the riot. If only some of them are so armed and others are not, all of them cannot be convicted u/s 148, I.P.C. and only those who are proved beyond reasonable doubt to have been armed with deadly weapons can be convicted under sec. 148, I P.G. In this case it is not proved as to which if any of the five appellants was armed with deadly weapon at the time of the riot. None of the appellants can, therefore be convicted u/s l48,I.P.C. Point No. 6-—Which offence or offences if any was or were committed 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 ? The common object of the assembly has been fully established by the prosecution evidence and the circumstances of the case to be that of giving beating to Chandras party. In prosecution of this common object all the five appellants caused hurt to various persons and grievous hurt to one. The prosecution evidence is unanimous in this respect and in spite of cross-examination in length none of the witnesses Ladu P.W.2, Kalu P.W. 3, Jaila P.W. 4, Bhola P.W. 5, Doonga PW.6, Reikha P.W.7, Mst. Jarav P.W.8, Remeshwar P.W. 9, and Sheobuxa P.W. 10 has been taken in this respect. No inconsistency has been shown in their statements in this respect at the trial with any of their previous statements recorded before the police or before the committing court. Jarav P.W.8, Remeshwar P.W. 9, and Sheobuxa P.W. 10 has been taken in this respect. No inconsistency has been shown in their statements in this respect at the trial with any of their previous statements recorded before the police or before the committing court. it is therefore perfectly, clear that in the prosecution of the common unlawful object of this assembly that is the beating of Sheobuxas party a simple hurt was caused to Mst. Jarav. Rameshwar, Sheobuxa, Doonga. Jaila, Kalu and Bhola and one grievous hurt was caused to Kalu as proved by the medical evidence. Thus in the prosecution of the common unlawful object of the assembly consisting of 5 appellants simple and grievous hurts were caused and the offences under sections 323 and 325 were committed. When an unlawful assembly makes an attack with lathis its members must know that grievous hurt was likely to be committed in the prosecution of the common object of beating. All the appellants therefore by Virtue of sec. 149 are guilty of the offence of grievous hurt as a grievous hurt was caused by some member of that unlawful assembly. It is not possible to hold on the state of evidence in this case as to whether the lathi with which the grievous hurt was caused was such an instrument which used as a weapon of an offence was likely to cause death. In our opinion therefore it would not be safe to convict the appellants u/s 326 read with sec. 149, I.P.C. Their proper conviction can be u/s 325 read with sec. 149, I.P.C, Point No. 7 —Whether an offence of murder was committed by any two or more of the appellants in furtherance of their common intention ? The prosecution evidence is unanimous that in the first instance Mangu, Bhana, and Jiwan attacked Chandra with lathis on his head and Chandra fell down, and soon succumbed to his injuries. The fact that as soon as Chandra protested to these accused when they met him on the path way as to why they had ploughed the field, these three accused in quick succession gave lathi blows on the head of the deceased clearly shows that they were actuated by a common intention to cause such bodily injuries to Chandra as were likely to cause his death. Medical evidence shows that Chandra had received the following injuries— External Injuries — (1) Lacerated wound 3" x 1" x 3/4" on the vertex (top of head). (2) Echymosis on the left eye lids and cheek 3" x 2". (3) Contusion 2" x 2" on the back right side, oblique, below the scapula (below the right shoulder blade). (4) Contusion 4" x 1", left arm posteriorly (behind) left pupil was dialated. Blood clots and extra vacated blood 5" x 3" above the left ear, fracture of the left parietal bone and right parietal bone 1" long fissured, and fracture of the left temporal bone 2" long. Internal Examination—Blood clots over the left parietal region of the brain present. Some fractures of the left parietal and right parietal bones 1" long and fracture of left temporal bone 2" long noticed. According to the doctor the injuries were caused by a blunt weapon and the death of Chandra was due to fracture of the skull bone resulting in haemorrhage on the surface of the brain causing compression. The medical examiner Dr. Dindayal P. W. 7 also clearly stated that the injuries seen on Chandra deceased were sufficient in the ordinary course of nature to cause his death. Under clause 300 therefore the offence of the three accused amounted to murder and they were liable to conviction u/s 302, IPC read with sec. 34, IPC. 23. It was argued that the accused appellants were not charged with sec. 302 read with sec. 34 but they were charged with an offence u/s 302 by virtue of sec. 149, IPC and there being no charge by virtue of sec. 34 they had been prejudiced by being convicted by virtue of sec. 34. The answer to this question is found in the judgment of their Lordships of the Supreme Court in the case of Karnailsingh vs. The State of Punjab (5). It was held— "Though there is substantial difference between sec. 34 and sec. 149, the sections also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under sec. 149 overlaps the ground covered by sec. 34. If the common object which is the subject-matter of the charge under sec. 149 does not necessarily involve a common intention, then the substitution of sec. 34 for sec. 149 overlaps the ground covered by sec. 34. If the common object which is the subject-matter of the charge under sec. 149 does not necessarily involve a common intention, then the substitution of sec. 34 for sec. 149 might result in prejudice to the accused and ought not there fore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under sec. 149 would be the same if the charge were under sec. 34, then the failure to charge the accused under sec. 34 could not result in any prejudice and in such cases the substitution of sec. 34 for sec. 149 must be held to be a formal matter." In the present case the charge is as follows— "You on 28tb June, 1955 or near about having armed with lathis and formed an unlawful assembly in order to prosecute common intention and criminal motive go to the way running near Kothi Khawaswali for commit ting Chandras murder by intentionally inflicting simple and grievous injuries with lathis and thereby committed Chandras murder............" It is quite clear that common intention has been given in the charge. The accused could have noticed that they were charged with common intention to commit Chandras murder and simply because sec. 34, I.P.C. has not been used it cannot be said that they have been in any way prejudiced. In Karnail Singhs case also the charge was u/s. 302 read with sec. 149. The facts were that the two accused got on the roof of the house of the deceased and set fire to it with the deceased and Mst. Bholan, wife of the deceased. Their Lordships observed that— "If it was their object u/s. 149 to burn the house and cause the death of Gurbaksh Singh that was also their intention under sec. 34. On the facts of this case there can be no difference between the object and the intention with which the offence were committed." 24. In this case also if the common object of the three appellants was to cause such bodily injuries to Chandra as were likely to cause his death, it could be said to be their common intention also. In this case also if the common object of the three appellants was to cause such bodily injuries to Chandra as were likely to cause his death, it could be said to be their common intention also. But the three appellants have not been charged with common object only but with common intention also and therefore this case stands on even stronger ground than the case of Karnail Singh where the words "common intention" do not appear to have been mentioned in the charge-sheet. 25. To our mind the contention of the learned counsel for the appellants in this respect has no force. 26. The appeal is partly allowed, the conviction of all the appellants u/s 148, I.P.C. is altered to one under sec. 147 and their conviction under sec. 326 read with sec. 149, I.P.C. is altered to one u/s 325 read with sec. 149, I.P.C. The sentence of three years rigorous imprisonment under sec. 148 is reduced to 1 years rigorous imprisonment each under sec. 147, I.P.C. In other respects the appeal is dismissed, that is conviction of Mangu, Bhana and Jiwan under sec. 302 read with sec. 34 and their sentence of life imprisonment are maintained. Although the conviction of all the appellants under sec. 326 is altered to one under sec. 325 yet their sentence of three years rigorous imprisonment each is maintained. All the sentences of imprisonment shall run concurrently. 27. Before parting with this case we might say that the learned Additional Sessions Judge was not justified in remarking that the police ought not to have challaned both the parties. Injuries were sustained by both the parties and as has been held above both parties were bent upon fighting and asserting their rights by force or show of force. It would have been difficult even for a committing court to say as to which of the parties in the circumstances of the case would be held to be aggressor without doubt at the trial. It was not the function of the police to give the benefit of doubt to any party. It was for the trial court to do. All that was necessary for the police to see was that there was some prima facie evidence that both the parties had committed riot and this can be said without doubt in this case that there was such evidence against both the parties. It was for the trial court to do. All that was necessary for the police to see was that there was some prima facie evidence that both the parties had committed riot and this can be said without doubt in this case that there was such evidence against both the parties. The police were therefore perfectly justified in sending both the parties to trial and the adverse remarks of the learned Additional Sessions Judge in this matter were not justified.