Judgment Imam, J. 1. The six appellants have appealed against the order of the trial court convicting them under Rs. 326/149, I. P. C. and sentencing them to two years rigorous imprisonment and also convicting them under Sec.147, Penal Code, and sentencing them to one years rigorous imprisonment, with the direction that these sentences are to run concurrently. There were no convictions for the specific charges. 2. The prosecution case, in short, is that in village Chandna there is a water reservoir known as Burhawa Bandh. It is said that the raiyats of the village have a right to irrigate their lands with the water or this bandh and they have also got the right to take fish from it, though it is the Khas property of the landlords. It is the prosecution case further that in the month of Fagoon last at about 2 p. m., the appellants along with others came there in a mob led by Chahar Ali, variously armed, along with four fishermen. The fishermen began to catch fish from the bandh. Hanif was armed with a tangi and Gafoor was armed with a bow and arrows. Thakuri Singh and other villagers came there and asked the accused persons not to fish from the bandh because all the villagers had the right to fish in the bandh. An altercation followed between Thakuri Singh and Chahar Ali. It appears that at that stage only Thakuri Singh and Ganpat Singh had gone there. The appellants along with others ran towards them, and it is said Thakuri Singh and Ganpat ran towards the house of Shankar Singh the father of Ganpat for safety. In the Bari of Shanker Singh, Thakuri Singh was assaulted by Diljan, Basarat, Reaz Ali and Hanif. It is also said that some other persons were also assaulted and Gafoor hit Ganpat fatally with an arrow. Ganpat and Thakuri fell down at the spot. Unesbwar Mahto was also assaulted with lathis and some sharp cutting instruments. Some time after the parties wont to Deoghar by bus and there the fard-beyan of Ganpat Singh was recorded as also his dying declaration. On the basis of the fard-beyan the first information report was drawn up in the case. At Deoghar another fard-beyan was recorded on the statement of appellant Basarat, and a counter case was instituted. Investigation then followed; charge-sheet was submitted. On the basis of the fard-beyan the first information report was drawn up in the case. At Deoghar another fard-beyan was recorded on the statement of appellant Basarat, and a counter case was instituted. Investigation then followed; charge-sheet was submitted. The appellants along with others, who were acquitted in the court below, were sent up for trial, convicted and sentenced as stated above. 3. The learned Judge came to the finding, that the bandh in question belonged to Chahar Ali and his agnates in the sense that they had the right to fish in the bandh. Once this finding has been arrived at, and indeed this finding cannot be assailed because of the over-whelming evidence including documentary on the record which goes to support this finding, it is quite clear that the accused party were doing nothing but catching fish from the bandh having their right to do so. The learned Judge also did not accept the evidence of the prosecution regarding individual assaults. Hence there was no conviction for specific assaults. The trial Court, however, was of the opinion that the common object of the assembly has been established, and, therefore, these appellants having taken part in the occurrence were guilty of being members of an unlawful assembly. It was also of the opinion that as it has not been established that there was intention to cause death, it found these appellants guilty under Sections 326/149, I. P. C. In this case the common object was only to assault. The trial Court was of the opinion, that when two parties go to a spot armed and if a pitched battle takes place, then the parties are liable, and the principle of right of private defence does not apply. The learned Judge has referred to a decision of this Court in support of this view. I have looked that decision, namely, Saudagar Singh V/s. Emperor. AIR 1929 Pat 527 (A). I am, by no means, satisfied that this decision decides that which the learned Judge thinks. Be that as it may, there is a decision of the Federal Court on this very point. It seems to me that if persons go to a spot to defend their right, there is nothing unlawful in the act of those persons. Sec.141. I am, by no means, satisfied that this decision decides that which the learned Judge thinks. Be that as it may, there is a decision of the Federal Court on this very point. It seems to me that if persons go to a spot to defend their right, there is nothing unlawful in the act of those persons. Sec.141. I. P. C., has laid down the definition of an unlawful assembly & in five clauses it is stated what are the elements required in order to make an assembly into an unlawful assembly. The requisites are that there must be five or more persons, and then the five clauses are mentioned in that section. If any one of those is found to be the common object of the unlawful assembly, then such an assembly must be deemed to be an unlawful assembly. In the present case, we are concerned with the fourth clause which runs as follows: "By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment or to enforce any right or supposed right." In the present case, we are not concerned with those who are trying to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which they were in possession or enjoyment. In view of they finding of the learned Judge the right was with the appellants to fish from the bandh in question. If there was anything it was the prosecution that was depriving the appellants of their incorporeal right and not the appellants depriving the prosecution party. The most important words that are to be considered are "to enforce any right or supposed right". When people go to defend their rights, that cannot be described as enforcing any right or supposed right. All that the appellants deemed to have done on the prosecution case and on the finding arrived at is that these appellants went there being armed to resist any attack on them in order to maintain their right or defend their right. When people go to defend their rights, that cannot be described as enforcing any right or supposed right. All that the appellants deemed to have done on the prosecution case and on the finding arrived at is that these appellants went there being armed to resist any attack on them in order to maintain their right or defend their right. I should have pointed out earlier that that part of the prosecution case that there was a chase from the bandh to the house of Shanker Singh is not true. In the fifth clause of Sec.141, Penal Code, nothing has been mentioned about defending ones right. In other words, if a person defends his right it is not considered to be illegal for the purposes of unlawful assembly. There must be no confusion, therefore, between the two kinds of right; one is right to defend property and person and the other is to enforce any right or supposed right. If the party concerned is defending his right in property then it cannot be deemed to be enforcing any right or supposed right. In this connection I would refer to a decision of the Federal Court reported in Kapildeo Singh V/s. The King, AIR 1950 FC 80 (B), which is as follows: "By having the charge framed in this manner, the prosecution clearly took upon itself the onus of proving that Chulhan Tewari was in possession of the disputed land, and there can be no doubt that of the three items set put in the charge as constituting the common object of the alleged unlawful assembly, dispossession of Chulhan Tewari, the complainant, was the most important one, the other objects stated being more or less subsidiary to the former. The most important part of the charge therefore would have failed if the appellant had been found to be in possession and such a finding would have also seriously affected the case of the prosecution with regard to the second common object, viz., "to assault", because it would have at once given rise to the question as to whether the accused should be held to be protected by the law of private defence. Conversely, if Chulhan Tewari had been found to be in possession, the appellant could not have escaped conviction. Unfortunately, however, the learned Judge ................... Conversely, if Chulhan Tewari had been found to be in possession, the appellant could not have escaped conviction. Unfortunately, however, the learned Judge ................... proceeded on the assumption that that question was immaterial because "both sides were determined to vindicate their rights by show of force or use of force". In our opinion, the matter was not capable of being disposed of so simply and so summarily, and the law on which the learned Judge bases his opinion, would appear to have been too loosely stated, if by the use of the word vindicate he meant to include even cases in which a party is forced to maintain or defend his rights". It will be thus clear that according to the decision of the Federal Court if a person is forced to maintain or defend his right, he cannot be said to have committed any illegal act. There is a difference between forced to maintain or defend any right and to enforce any right or supposed right. What Section 141, Penal Code, prohibits is enforcing any right or supposed right and not maintaining or defending ones right. That being the position and in view of the fact that the finding is that the appellants had every right to fish in the bandh, the appellants committed no illegal act by going to the spot aimed as they went there to resist any attack in order to maintain or defend their right. The common object of the assembly, as I have already pointed out, is to assault. Undoubtedly some people had been assaulted, but every assault is not illegal. If the assaults took place in order to defend ones right or maintain ones right, then such an assault by itself cannot be said to be illegal. Upon the finding arrived at, and I agree with the finding, there can be no doubt that the assaults that took place were in order to defend the right or maintain the right of the appellants. Hence, the rioting charge in this case must necessarily fail. 4. Apart from these facts, even on the merits of the case, as distinct from the legal aspect no case of unlawful assembly has been established; it is more than clear that if a party goes to a spot armed, that by itself is no offence. Hence, the rioting charge in this case must necessarily fail. 4. Apart from these facts, even on the merits of the case, as distinct from the legal aspect no case of unlawful assembly has been established; it is more than clear that if a party goes to a spot armed, that by itself is no offence. If a fight takes place and then assault, then only those will be liable who actually took part in the assault, and not those who happened to be present there, because mere presence in the circumstances cannot show that those who were present had shared the common object of the unlawful assembly. In the present case, therefore, the mere presence of these appellants is not enough. It has also to be shown that they did some overt act from which it can reasonably be inferred that they shared the common object of the assembly, namely, to assault. In this case, the evidence regarding specific assaults has not been accepted. In my opinion, the learned Judge was justified in doing so because the evidence is highly unsatisfactory. Hence, it is not possible to hold that these appellants had shared the common object of the assembly. It is true that the prosecution case was that the whole mob chased Ganpat and Thakuri Singh. But that part of the prosecution case has been disbelieved, and rightly too. The circumstances do support this finding. Blood has been found just near the bandh. A trail goes right up to the spot where Ganpat fell down. In the first information report, it is clearly stated that the assault took place at the bandh. The trail from the bandh to the place where Ganpat had fallen down does not necessarily mean that there had been this chase. Hence, there is nothing to show that any of these appellants had done any overt act which would go to establish that he had shared the common object of the unlawful assembly. That being so, on this ground also the charges under Sec.147, I. P. C., as well as under Sections 326/149 cannot be said to have been established. 5. The result, therefore, is that the order of conviction and sentence passed on these appellants is set aside, the appellants are acquitted of the charges framed against them, and their anneal is accordingly allowed.