JUDGMENT MISRA, J. :- Appellants 1 to 8 in Criminal Appeal No. 38 of 1962 are respectively respondent Nos. 1 to 8 in Government appeal No. 20 of 1962. They have been convicted under Section 148, I.P.C. and each has been sentenced to R.I., for one year thereunder. Accused No. 1 (Picharu Bhati) has been further convicted under Section 324, I.P.C. and sentenced to R. I. for 1½ years. Accused No. 2 (Banshi Bhati) has been further convicted u/S. 304, Pt. II, I.P.C. and sentenced to R.I. for 4 years. Accused No. 3 (Rajaram Dinda) has been further convicted under Section 325, I.P.C. and sentenced to R. I. for 3 years - (though imposition of fine is compulsory under Section 325, no fine has been imposed on him). Accused 4 (Bhaira Bhati) has been further convicted under Section 323, I.P.C. and sentenced to R. I. for one year. Accused 5 (Chaitan Bhati) has been further convicted under Section 324, I.P.C. and sentenced to R.I. for one year. Accused 6 (Jujesthi Raha) has been further convicted under Section 323, I.P.C. and sentenced to R.I. for 6 months. The sentences inflicted are to rim concurrently. Against the order of convictions and sentences, the accused have filed Cr. App. 38/62. They have been acquitted of the charges under Sections 302 and 302/149, I. P. C. and Government appeal has been filed to set aside the order of acquittal and to convict them under the aforesaid sections. 2. The prosecution case is as follows : Within the village limit of Padampur, Kudobhatta is a hamlet which is mostly inhabited by the family members of Ex-Gountia and Gandas. The main village Basti in Padampur is inhabited by the tenants of the village. In between the village and the hamlet there is a Jakhar Kata (plot No. 344), which is an irrigating tank. Kata is an irrigating tank having an embankment (Adi) on one side only. Originally the area of this Kata was 1.62 acres in 1938. Satyanarayan Bag, who was teen the Gountia- Thikadar of village Paciampur, applied for lease of a portion of the bed of this Tank for converting it into a paddy field. After enquiry, the ex-State Government of Bolangir-Patna granted lease of 0.80 acre which was allotted a separate plot No. 1107 and is known as Kadalimunda Bhag land of the ex-Gountia. Satyanarayan Bag, who was teen the Gountia- Thikadar of village Paciampur, applied for lease of a portion of the bed of this Tank for converting it into a paddy field. After enquiry, the ex-State Government of Bolangir-Patna granted lease of 0.80 acre which was allotted a separate plot No. 1107 and is known as Kadalimunda Bhag land of the ex-Gountia. In a partition amongst the Gountia and his sons, plot 1107 fell to the share of Jogeswar Bag (P.W. 1). The rest of 0.82 acre continued as Kata. The Adi of this Kata has on the eastern side of the Kata and is plot No. 86 - Plot No. 1107 is to the south of the Kata and launches the southern extremity of tile Adi. After the abolition of the Gountia system, the management of the tank was taken over by the Gram Panchayat. In 1958 some tenants of Padampur applied for grant of some money for improvement of this Kata for storing larger quantity of water in it. Rs. 400/- was allotted by the Gram Panchayat and accused 1 who was the ward member of the Gram Panchayat, took the money for effecting implement. On July 11, 1958, P.W. 1 filed an application (Ex. 2) alleging that the tenants of Padampur were closing the Ghai (the passage through which water is let out) of the Kata which was on the Adi, and as a result of which damage would be caused to his land if the water would, exceed beyond a certain level. The Sarpanch (P.W. 13), Damabrudhar Meher made a local inspection and asked accused No. 1 to put embankment on all sides of the Kata covering it into a full-fledged tank. The Sarpanch was prepared to grant further money for the purpose, if necessary. But accused 1 and other tenants were obstinate and did not listen to the Sarpanch. They only strengthened the Adi by raising its height six feet more. As a result of this, large quantities of water accumulated in the Kata and the Kadalimunda Bhag land in plot 1107 and other lands of P.W. 1 were submerged in the year 1958 and no crop could be grown on them. When the height of the Adi was raised, one Biswanath Bag, a cousin of P.W. 1 was in the party of the tenants. When the height of the Adi was raised, one Biswanath Bag, a cousin of P.W. 1 was in the party of the tenants. In 1950, he changed the party and came over to the side of P.W. 1. On July 10, 1960, P.W. 1 and his servants cut the embankment to bring down the level of the water. In the morning of July 12, 1960, P.W. 1 went to the spot with 8 field servants to plough the land. Some of the accused persons, led by accused 1, rebuked P.W. 1 for cutting the ridge and opening the Nala, and also assaulted and drove them away from the field. First Information report was lodged in the Police Station by a person from the side of P.W. 1. This morning occurrence is not the subject-matter of the present dispute. The Sub-Inspector of Police deputed a constable to the two villages for having an enquiry at Belpara P.S. Padampur, the village of parties, and Belpara P.S. are intervened by a river named Lant. At about 3 p.m. P.W. 1 with his 4 field servants and 13 Gandas (his labourers) went to Kadalimunda Bhag land for weeding the grass to make it fit for transplantation of paddy. When they were weeding the grass on the land, 29 accused persons, armed with various lethal and dangerous weapons, led by accused 1 to 4, came in a body on the ridge of the Kadalimundi Bhag land, abused the Gandas for cultivating the land and asked them to leave the field. When the Gandas replied that they were coolies and prepared to work for wages, accused 1 asked the mob to assault the party of P.W. 1. He himself suddenly gave a blow with a Tabal on the head of deceased Subanath Bibhar. When Subhanath turned, he gave another blow as a result of which Subhanath fell down on the land. Accused 2 assaulted deceased Hagru with a Tabal on his head and Hagru fell down. Accused 3 gave two blows with Gujar Bari (a pointed iron rod fixed to a lathi) on the head of deceased Guman Kumbhar and two blows on both sides of his neck as a result of which Guman fell down. Accused 5 assaulted P.W. 5, Ambila Kumbhar, the sen of Gimian, with a tangi. Accused 3 gave two blows with Gujar Bari (a pointed iron rod fixed to a lathi) on the head of deceased Guman Kumbhar and two blows on both sides of his neck as a result of which Guman fell down. Accused 5 assaulted P.W. 5, Ambila Kumbhar, the sen of Gimian, with a tangi. Accused 4 assaulted Guman Kumbhar with a lathi, Accused 6, 7 and 8 had lathis in their hands. Accused 6 assaulted P.W. 8 (Musru Kumbhar) with lathi. Subanath died about one hour after the occurrence. Hagru died in the hospital on July 14, 1960 at about midnight. Guman died in the hospital on July 15, 1960 at about 10 a.m. F.I.R. (Ex. 1) was lodged by P.W. 1 at Balpara P.S. on July 13, 1960. It is the common case of the parties that there were heavy rains on 11th and 12th July and that river Lant was in high floods. 3. Accused 1 to 3 admit that they were present in the riot. Accused 4 to 8 deny their presence at the place of occurrence, it is not necessary to give the versions of the other 21 accused persons who have since been acquitted. The defence admits the occurrence having taken place at about 4 to 5 p.m. on July 12, 1960. According to the accused persons, P.W. 1 surreptitiously cut the Adi of the Kata on July 11, 1960 and made a huge gap. On detection the villagers filled up the Ghai; but again in the same evening he cut the Ghai open, in the morning of July 12, 1960 when P.W. 1 was opening, the Ghai, Accused 1 with other villagers came to the Kata and threatened to assault them if they would not leave the place. P.W. 1 with his men left the place and the villagers of Padampur filled up the Ghai. At about 4 p.m. P.W. 1 came with 16 personal who were mostly Gandas of Mudobhatta armed with Raphas and lathis. P.W. 1 was holding a gun. They opened the Nala again. Some villagers of Padampur were giving a watch at the Nala. When words were sent, other villagers came to the spot. Accused 1 requested P.W. 1 and his men to leave the spot. P.W. 1 and his party men threw stones at the accused persons and there was also stone throwing from the party of the accused. Some villagers of Padampur were giving a watch at the Nala. When words were sent, other villagers came to the spot. Accused 1 requested P.W. 1 and his men to leave the spot. P.W. 1 and his party men threw stones at the accused persons and there was also stone throwing from the party of the accused. In the riot when Subhanath was raising his Rapha to assault accused 1, one person from P.W. 1's party gave a blow and the Rapha fell on the head of Subhanath causing injury to him. Bishwanath asked Hagru to assault the accused; but as Hagru did not listen, Biswanath gave a push to him from behind as a result of which Hagru fell on a Guhuria tree sustaining injuries on the head and became senseless. Guman Kumbhar sustained injuries due to stone throwing from both sides. According to them, the occurrence took place on the Kata Adi and they were fiat aggressors. 4. The learned Sessions Judge held that the occurrence took place at the southern end of the Adi where the Ghal was opened by the complainant's party. On a reference to the spot map it would be clear that clot 1107 and the that touched each other. In fact plot 1107 has been carved out of the Kata itself. He has farther held that it may be that some men of the complainant's party were inside the field in plot 1107 which enjoins the Kata Adi to the Southern-most corner, but the deceased persons and the Gandas were at the Ghai cannot be disbelieved. In view of the close proximity of the Adi to plot 1107, the finding is correct and cannot be assailed. Whether the occurrence took place at the Adi or inside plot 1107 close to the Adi has not much material bearing on the ultimate decision of the case. 5. It is necessary at this stage to consider as to whether the party of P.W. 1 constituted an unlawful assembly. P.Ws. 1 and 3 to 12 are the eye-witnesses to the occurrence and all of them have stated that the party of P.W. 1 was weeding out grass for making the lands fit for transplantation. They had gone there unarmed. It is necessary at this stage to consider as to whether the party of P.W. 1 constituted an unlawful assembly. P.Ws. 1 and 3 to 12 are the eye-witnesses to the occurrence and all of them have stated that the party of P.W. 1 was weeding out grass for making the lands fit for transplantation. They had gone there unarmed. Even if P.W. 1 had no right to cut the Adi of the Kata to release the accumulated water, being unarmed he did not enforce that right or supposed right by means of criminal force or show of criminal force. His party, therefore, did not constitute an unlawful assembly. 6. The members of the accused-party all came in a mob from the village armed with various dangerous end lethal weapons. They came to the place of occurrence not to allow the party of P.W. 1 to make an opening in the Adi. They by means of criminal force or show of criminal force wanted to enforce a right or supposed right. The usual argument, based on the distinction between maintaining a right and enforcing a right, no longer holds good in view of the decision of this Court reported in ILR (1952) Cut 219, Pranbandhu v. The State. The accused party clearly constituted an unlawful assembly. Even if the complainant's party had constituted an unlawful assembly, the accused would have no valid defence in saying that they would also constitute an unlawful assembly by way of retaliation. When there is a free fight between the parties, each constitutes art unlawful assembly. The members of the complainant's party were already in the field. Admittedly there was copious rain on the 11th and 12th and it was the month of July. If the water of the tank would have been allowed to pass away so as to reduce its volume and level, it would have caused no injury to the accused. They had sufficient time to take recourse to the protection of the public authorities against any interference with their supposed right of the Adi. Under Sec. 99 I.P.C. they have no right, of private defence. As the complainant's party were already in the field unarmed and the accused in a large number came from their village fully armed, the latter were clearly the aggressors. All the eye-witnesses implicate accused 1 to 8 as being members of the unlawful assembly. Under Sec. 99 I.P.C. they have no right, of private defence. As the complainant's party were already in the field unarmed and the accused in a large number came from their village fully armed, the latter were clearly the aggressors. All the eye-witnesses implicate accused 1 to 8 as being members of the unlawful assembly. Accused 1, 2, 3 and 5 were armed with deadly weapons and are punishable under Sec. 148, I.P.C. The other four accused persons carried only lathis and are punishable under Sec. 147, I.P.C. (After discussing the evidence concerning accused 1 to 7 in Para 7, the judgement proceeded :) 8. I have already said that accused 1, 2 and 3 are each liable to be convicted under Sec. 302, I.P.C. The question for consideration is whether the other 5 accused persons are each to be convicted under Sec. 302/149, I.P.C. The scope and applicability of Sec. 149 I.P.C. was considered at length in the case of Himirika Lokanath v. State, reported in 1962 Cut LT 435 : (1964 (1J Cri LJ 114). Most of the Supreme Court decisions cited before us were considered in that case and it is unnecessary to cover the same field by further reference to those. This Court held that where several persons assaulted the deceased, the common object can be collected from the nature of the assembly and of the arms used by them and from the behaviour of the assembly at or before the scene of occurrence. The common object is an inference of fact to be deduced from the circumstances of each case. 9. In this case there is admitted litigation and inimical relationship between the parties at least from 1958 onwards. Over the very Adi there was an incident in the morning of the date of occurrence in connection with which a report had been made at the Police Station. No immediate injury or danger was apprehended to the Kata. Accused 1 was obstinate in not converting the Kata into a full fledged tank though the Sarpanch offered advance funds for the purpose. Accused persons came in a large body armed with various dangerous and lethal weapons. The consistent prosecution evidence is that when the accused persons reached the spot, accuse 1 asked the Gandas to leave the spot and immediately after ordered and started assaulting an unarmed party. Accused persons came in a large body armed with various dangerous and lethal weapons. The consistent prosecution evidence is that when the accused persons reached the spot, accuse 1 asked the Gandas to leave the spot and immediately after ordered and started assaulting an unarmed party. From all these facts the conclusion is irresistible that the death of the three deceased was committed by accused 1, 2 and 3 in prosecution of the common object of the unlawful assembly. It was laid down in AIR 1959 SC 572 , Mizaji v. State of U.P., that "the test was - did the members of the unlawful assembly intend to attain the common object by means, of murder if necessary ?" There is evidence in this case that one member from each of the houses in the village was called to join the party to protect the Adi. The circumstances of this case establish, the existence of the common object as being one of murder if it becomes necessary while preventing the party of P.W. 1 from cutting the embankment. From the aforesaid, circumstances, it is also clear that the members of the unlawful assembly knew it to be likely that murder would be committed in prosecution of the common object. All the rest 5 accused persons are each liable to be convicted under Sec. 302/149 I.P.C. 10. It has been argued that accused 7 and 8 committed no overt act and were not members of the unlawful assembly. It is stated that (S) AIR 1956 SC 181 , Baladin v. State of U.P. lays down that unless an overt act is committed, a person cannot be said to be a member of the unlawful assembly. This decision was considered in 1962 Cut LT 435 : (1964 (1) Cri LJ 114). The Supreme Court decision does not lay down any such proposition. The commission of an overt act is certainly evidence of the fact that the accused was the member of an unlawful assembly. But the converse is not true. In other words, it cannot be contended that if there is no proof of commission of certain overt act by an accused, he is not a member of the unlawful assembly. The commission of an overt act is certainly evidence of the fact that the accused was the member of an unlawful assembly. But the converse is not true. In other words, it cannot be contended that if there is no proof of commission of certain overt act by an accused, he is not a member of the unlawful assembly. All that their Lordships have laid down in this case is that since innocent on-lookers may be mixed up with real culprits in a large melee, close scrutiny of the evidence implicating particular persons as being members of the unlawful assembly is essential. Paragraph 28 of the judgement makes it clear that their Lordships acquitted 4 of the appellants on the ground that they might personally have been spectators who got mixed up with the crowd. Whether a person is a member of the unlawful assembly or not is a pure question of fact to be determined on the assessment of evidence. Accused 7 and 8 having lathis in their hands have been implicated by the eye-witnesses as being members of the unlawful assembly and they were not innocent spectators who got mixed' up in the crowd. (The rest of the judgement is not material for this report - Ed.) 14. DAS, J. :- I agree. Govt. appeal allowed. Criminal appeal allowed in part.