JUDGMENT 1. Each of the petitioners was convicted under sections 148 and 379/109 I. P. C. and each was sentenced to a term of imprisonment as well as to a fine. There was also an order upon each to execute a bond for Rs. 100 under section 106 Cr. P. C. I am no longer concerned with the sentences of imprisonment as they were set aside by the lower appellate court. The order under section 105 Cr. P. C. was also set aside by the appellate court. The sentences which remain are as follows: under section 143 I. P. C. each of the petitioners is to pay a fine of Rs. 200 in default to suffer R. I. for six weeks. Under section 379/109 I. P. C each petitioner is to pay a like fine and in default to suffer like imprisonment. 2. This was a case of paddy cutting, an usual occurrence during the harvesting season. As usual, each party put forward its title to the land. It is common case that the petitioners openly and without any interruption cut away and. removed the paddy to their homestead and there stacked it. The complainant's homestead was contiguous. The operation concerned took some 12 hours mid-night to midday. Mr. Nalin Chandra Banerjee appearing on behalf of the petitioners has taken three points. His first point is that out of the 10 persons charged under section 143, 6 having been acquitted, the petitioner can no longer be held guilty of an offence under section 143 I. P. C. The charge concerned mentioned only ten named persons as having participated in the unlawful assembly. There was no indication of others having also been members of the unlawful assembly. At the trial evidence was adduced to the effect that a hundred or more persons had participated in the unlawful assembly. 3. Mr. Ajit Kumar Dutt, appearing on behalf of the State has contended that it was clear to the accused that according to the prosecution infinitely more persons than ten had participated in the crime and that therefore, although 6 of the named persons were acquitted, the remaining 4 must be held to have teen members of an unlawful assembly. I accept the contention of Mr. Banerjee as being unanswerable. I accept the contention of Mr. Banerjee as being unanswerable. The prosecution may have adduced evidence purporting to show that many more persons had participated in the crime but the charge to which the petitioners were called upon to plead mentioned only 10 named persons as having been members of the unlawful assembly. Six of them having been acquitted, the remaining four cannot be said to have been members of an unlawful assembly which requires participation on the part of at least 5 persons. I must accordingly set aside the conviction of each one of the petitioners under section 143 I. P. C. and the sentence imposed upon him. 4. Mr. Banerjee has next contended that although the second charge against each of the petitioners was under section 379 each was convicted under section 379/109 I. P. C. This according to Mr. Banerjee was not permissible. Had this been a case of an attempt to commit an offence under section 379, such an attempt could have been punished without any of the petitioners having been separately charged with it. This is obvious from (2a)of section 238 Cr.P.C. Ajit Kumar Dutt has contended that the courts below should have found each one of the petitioners guilty under section 379 and not under section 379/109. Mr. Dutt has at the same time pointed out that each of the petitioners having been convicted and punished under section 143 the common object of which was to commit an offence under section 379, no separate punishment under section 379 or under section 379/109 was called for. Mr. Dutt has also referred to section 225 Cr. P. C. for saying that the error if any could not affect the legality of the conviction unless it could be shown that the petitioners had been misled, etc. Mr. Dutt has also referred me to sections 236 and 237. In my view these considerations do not appear to me to affect the validity of Mr. Banerjee's contention. However in view of my decision as to the last point which I shall presently discuss it is not necessary to decide whether in the absence of a specific charge the conviction of each one of the petitioners under section 379/109 was bad. The last point is whether on the facts of this case any of the petitioners could be said to have anything 'dishonestly' within the meaning of section 378. The last point is whether on the facts of this case any of the petitioners could be said to have anything 'dishonestly' within the meaning of section 378. As I have said before, each party put forward a title to the land and the accused harvested and removed the paddy openly and without any interruption. This operation took some 12 hours. After the incident in question the accused party filed a title suit in respect of the land. There can be no doubt that even though both parties called evidence as to possession, there were questions of title which only a civil court could have finally decided. Nevertheless, both the courts came to concurrent findings as to possession having been with the complainant's party. Mr. Banerjee's grievance has been that the learned appellate court did not adequately deal with the defence evidence. Although the learned appellate court delivered a lengthy judgment, he does not appear to me to have dealt with the evidence of each one of the 6 defence witnesses called on behalf of the petitioners. At one place the learned judge was merely content to say: "I believe the P. Ws. and disbelieve the D. Ws. and find that the accused persons did not possess the disputed plot in 1362 B. S. or at any time and that the paddy which was grown on the disputed plots left by Promila was grown by Ramdulal through his bhag tenants and labourers. . . . . " 5. Again the learned judge dismissed the defence version in the following words: "I also agree with the learned Magistrate that the accused Mandals 15 did not get peaceful possession of the lands in dispute which previously belonged to Akinchan and that their reaping paddy on 5th Poush, 1362 B. S. as alleged by the D. Ws. also cannot be believed in view of the prosecution evidence and in view of the previous history of possession and the registered deeds of gift and auction purchase made by the complainants, may be to grab the property of Promilla Bala. " 6. A better way would have been for the learned judge to take up the evidence of each one of the defence witnesses, to discuss it and then to come to his own conclusion as to its value or credibility. " 6. A better way would have been for the learned judge to take up the evidence of each one of the defence witnesses, to discuss it and then to come to his own conclusion as to its value or credibility. In view of the evidence in the case it is doubtful whether the element of dishonesty was established beyond all reasonable doubt. That being so the petitioners would be entitled to the benefit of doubt in respect of the offence under section 379/109 I.P.C. I would therefore give them the benefit of doubt and acquit them, under section 379/109 I.P.C. The sentences Imposed in respect of the offence under section 379/109 I.P.C. must accordingly be set aside. In the result, this application succeeds and the rule is made absolute.