SHINGHAL, J.—These two appeals are directed against the judgment of the learned Additional Sessions Judge No. 1, Jodhpur, Dt, December 12, 1960. Criminal Appeal No. 1 of 1961 has been filed by Mangia and 16 others against the following convictions and sentences:— Name Convictions Sentences Mangia 302 IPC for murder of Gokul Life Imprisonment Ummed 147 IPC. 1 years R.I. 325/149 IPC for forming an unlawful assembly with the common object of causing grievous hurts to Roopram, Durga Ram and Hariram (who died) 3 years R.I. on each count. 325/149 IPC for forming an unlawful assembly with the common object of causing grievous hurts to Dayaram, Bhomaram, Sewaram, Kishna Ram and Rewat Ram. Dhanna 147 IPC 1 years R.I. 325/149 IPC for forming an unlawful assembly with the common object of causing grievous injuries to Roopram and Durgaram (who died) 3 years R.I. 325 IPC for causing grievous injury to Durga Ram (who died) 3 years R.I. Govind 148 IPC. 2 years R.I. 325/149 IPC for forming an unlawful assembly with the common object of causing grievous injuries to Roop Ram and Durgaram (who died) 3 years R.I. 302 IPC for the murder of Durgaram Life imprisonment Rampal Poosa Naria Choona Shivla Mubarak Wali Mohamad Shakoor s/o Gheesa Kasam Sadiq Bhoora (i) 147 IPC 1 years R.I. (ii) 325/149 IPC for forming an unlawful assembly with the common object of causing grievous injuries to Roopram, Durgaram, Hariram (who died), Dayaram, Bhomaram, Sewaram, Kishna Ram, and Rewat Ram. 3 years R.I. each Haji Mohamad alias Harji Shakoor s/o Kadarbux (i) 148 IPC. 2 years R.I. (ii) 302 IPC for the murder of Roopram Life imprisonment (iii) 32 5/149 IPC for forming an unlawful assembly with the common object of causing grievous injuries to Durgaram, Hari Ram(who died), Daya Ram, Bhomaram, Sewaram, Kishnaram and Rewatram. 3 years R.I. each All the sentences have been ordered to run concurrently. Criminal Appeal No. 154 of 1961 has been filed by the State with the prayer that accused Pokar, Shera, Harka, Sonaram, Sahiram, Umed, Dharam, Rampal, Poosa, Naria, Choona, Shivlal, Mubarak, Wali Mohammad, Shakoor son of Gheesu, Kasam, Sadiq and Bhoora should also be convicted of an offence under sec. 302/149 India Penal Code. 2. The police challan in the case was presented against 22 accused persons and the allegations were like this : There is aghor (gochar) land beating khasra Nos. 302/149 India Penal Code. 2. The police challan in the case was presented against 22 accused persons and the allegations were like this : There is aghor (gochar) land beating khasra Nos. 460 and 567/1 near village Dhanadi Kalan in the vicinity of hillock commonly known as Chor Bhakari, in Osian tehsil. The rain water used to flow from over the agnor land on to naadi. The accused were cultivating the aghor land for some time and this was resented by one Durgaram and his party. They, therefore, started litigation in the concerned revenue courts for the eviction of the accused who, in their turn, claimed that they were the tenants in possession of the lands and were not liable to ejectment. This led to considerable tension between the two parties. Collector, Jodhpur, wrote a letter (Ex, P. 127) to Tehsil-dar Osiyan on July 3, 1959 directing him to take immediate steps against "further trespass on the aghor land and to prevent its cultivation by the trespassers. Thereafter, Durgaram organized a party on the morning of July 10, 1959, to inform the accused of the Collectors orders and to ask them not to cultivate the aghor land. He, along with 11 others, proceeded to the place of occurrence. According to the version contained in the first information report (Ex. P. 1) made by Bhomaram (P.W.1), Nata and Ghamanda (P.W.3) at 3 p.m. in Police Station Khedapa, accused Govinda, Dharma, Rampal, Ummed, Poosa, Naria, Choona, Shivlal, Harji, Kasam, Shakoor, Sadiq, Mohammed, Vala and Shakoor were ploughing the aghor land at about 10 a.m. while Bhera, Pokar, Sona, Harka, Sahiram and Mangia were standing in the aghor land. Durga Rams party consisting of himself and Ghamanda, Nataram, Gokal, Durga, Rewat, Jai Ram, Roopa, Heera and Sewa went there to tell the accused not to plough the land. There was an alteration between them at that time. Accused Mangia, Harji and Shakoor, who were armed with guns, fired at them, killing Gokul and injuring Roopa. The other persons had lathis, swords and Kassis with which they injured Rewat, Durga, Daya Ram and Heera, who fell down unconscious. 3. The above narration of events in the first information report was subsequently modified by the prosecution in as much as it was alleged that there were two separate, though connected incidents. The other persons had lathis, swords and Kassis with which they injured Rewat, Durga, Daya Ram and Heera, who fell down unconscious. 3. The above narration of events in the first information report was subsequently modified by the prosecution in as much as it was alleged that there were two separate, though connected incidents. According to that version, when Durga Rams party reached Chor Bhakari, they found Mangia, Pokar, Shera, Harka, Sona Ram and Sahiram accused standing there. Mangia asked the men in Durgarams party where they were going and on being told that they were going to ask the cultivators not to plough the land, Mangia got enraged and fired his gun killing Gokul. This is said to be the first part of the incident. On hearing the report of the gun fire, the remaining accused rushed to the place of occurrence, armed with deadly weapons, and they, along with the six accused who were already there with Mangia, surrounded Durgarams party. Harji and Shakoor s/o Kadar fired their guns killing Roopa. Dharma gave a lathi blow on the head of Durga Ram while Govinda gave blows to him with his sword, as a result of which he died immediately. Hira Ram was also beaten and succumbed to his injuries. Dayaram, Bhomaram Sewaram, Kishan and Rewat Ram were the other persons who were injured in the beating given by the accused. This is said to be the second part of the incident. 4. The police took up-the investigation of the case almost immediately, but by the time the investigating officer reached the place of occurrence, the dead bodies had been removed to the shade of an adjoining khejri tree. The investigating officer prepared site plan (Ex. P. 11) and noted its description in memo Ex. P. 11-A. Various articles were found lying at or near the place of occurrence and they were all seized by the police. Among others, the investigating officer recovered five live .12 bore cartridges. Four of them contained bullets while one cartridge contained shots. The post mortem examination was performed on the dead bodies of Durga, Roopa, Gokul and Heera vide reports Exs.P.64, P.65 P.66 and P.67, respectively, on July 11, 1959, by Dr. Har Govind P.W. 18. The injuries of Dayaram, Bhomaram, Sewaram, Rewatram and Kishna were also examined the same day by Dr. Har Govind and the relevant reports are Exs. The post mortem examination was performed on the dead bodies of Durga, Roopa, Gokul and Heera vide reports Exs.P.64, P.65 P.66 and P.67, respectively, on July 11, 1959, by Dr. Har Govind P.W. 18. The injuries of Dayaram, Bhomaram, Sewaram, Rewatram and Kishna were also examined the same day by Dr. Har Govind and the relevant reports are Exs. P. 52 to P. 56. The injuries on the accused Kasam, Poosa, Sahiram, Nari, Dharma, Bhoora, and Govinda were also examined by Dr. Har Govind and his reports in that connection are Exs. P. 57 to P. 63. The police seized one muzzle leading gun each from Shakoor son of Kadar, Harji and Mangia, as also the other weapons which are said to have been used by some of the accused at the time of the incident. 5. After Completion of the investigation, a challan was put up by the police against all the 22 accused and they were committed to the Court of Sessions by the learned Munsiff Magistrate, Jodhpur, by his order dated November 10, 1959. The case was tried by the learned Additional Sessions Judge, who convicted and sentenced the accused as aforesaid. He acquitted Pokar, Shera, Harka, Sonaram and Sahiram, who were said to be with Mangia at the time of the first incident, because he reached the conclusion that they did not take any part and did not know that Mangia would fire his gun and commit the murder of Gokal. 6. The prosecution examined 23 witnesses of which Bhomaram (P.W. 2), Ghamanda (P. W. 3), Sewaram (P. W. 4), Kisshnaram (P. W. 5), Bhoma s/o Bagha (P. W. 6), Rewat Ram (P.W. 7) and Dayaram (P.W. 8) are said to be the eye-witnesses of the occurrence. They have given statements, which are more or less similar, in support of the prosecution version that there were two incidents: the one in which Mangia fired his gun and killed Gokul, and the other in which Durgaram, Roopa and Hiraram were killed. Jatan Singh (P. W. 1) is the literate constable who was incharge of the Police Station, Khedapa, when Bhoma, Nata and Ghamanda lodged the F. I. R. of which the roznamcha entry is Ex. P. 14. Jatansingh also went to the place of occurrence and saw the dead bodies lying there under a tree and also some of the other injured persons there. P. 14. Jatansingh also went to the place of occurrence and saw the dead bodies lying there under a tree and also some of the other injured persons there. He kept a watch until the arrival of the senior police officers on the spot. C. I. Abdul Razak (P. W. 22) is the next important witness who was deputed to investigate the case. He went to the Police Station, Khedapa and after registering the case there, he reached the place of occurrence at 12 in the night. He found L. C. Jatansingh present near the dead bodies. He prepared the memoranda of the injuries on the dead bodies as well as the injuries which were found on the persons of Kishnaram, Bhomaram, Durgaram, Sewaram, and Rewatram and recorded their statements. The injured persons were then sent to Mahatma Gandhi Hospital, Jodhpur. The C. I. inspected the site, and prepared plan Ex. P. 11 as well as memo Ex. P. 11 A. He recovered blood stained earth from those places where the deceased were said to have fallen down on receiving the injuries and also seized some pairs of shoes, safas, upper-end of a sword, 5 live cartridges of .12 bore gun and broken piece of cover of a gupti. Natharam (P. W. 16) and Bheru Puri (P.W. 17) are the motbirs of those recoveries and the preparation of the site plan etc. During the course of the investigation, a sword was recovered at the instance of Govinda in the presence of motbir Pema (P. W. 11), a Kassi was recovered from the house of Ummed in the presence of motbir Poonam Chand (P.W. 12) and a gun each was recovered in the presence of motbir Bhimraj (P.W. 13) from the houses ofaccused Harji and Shakoor s/o Kadar. S. I. Mangilal (P. W. 15) recovered a gun on July 30, 1959, at the instance of Mangia accused of which he held a valid licence and a dang at the instance of Sadiq accused in the presence of motbir. 7. Of the remaining witnesses, Harisingh (P.W. 19) was the Patwari of village Dhanarikalan during 1957-59. He stated that no parcha lagan had been issued in the settlement of Samvat 2009-2010 regarding khasra No. 460 as it had been shown ghair mumkin. The witness further stated that he took the Tehsildars order (Ex. 7. Of the remaining witnesses, Harisingh (P.W. 19) was the Patwari of village Dhanarikalan during 1957-59. He stated that no parcha lagan had been issued in the settlement of Samvat 2009-2010 regarding khasra No. 460 as it had been shown ghair mumkin. The witness further stated that he took the Tehsildars order (Ex. P. 113) dated 26.9.58 for dispossession of various persons from the fields mentioned in it, including khasra Nos. 460 and 567/1. Those in possession of the fields, however, refused to deliver the possession to the witness on the ground that their crops were standing at that time. Hari Singh also proved his report (Ex. P. 117) in which he noted that he found cultivation in field No. 460 and that the cultivators refused to desist from cultivating it. The witness, however, admitted that the revenue record showed that some of the accused were cultivating Khasra No. 460 from Samvat 2012 and that he recovered the rent from them on that account in Samvat 2013 without realising any penalty. Further, he admitted that the whole of Khasra No. 468 should not have been shown as aghor land as the naadi to which the water flowed from that land was small and was about 500 or 640 yards away. Takhat Singh (P. W. 20) was produced by the prosecution to show that notices Exs.P.107 to P.112 were served by him on the concerned persons. Sri Shiv Shanker (P.W. 21) was the Collector of the Jodhpur district and he deposed that he issued letter Ex.P.127 to the Tehsildar recording the aghor land in question. Shri Kishanmal (P.W. 23) was the Tehsildar of Osiyan from 1957 to 1959 and he proved the notice Exs.P.107 to 114 as having been issued under his signatures. Dr. Har Govind (P.W. 18) performed the post mortem examination of the dead bodies of Rooparam, Gokul and Hiraram and found the following injuries on the persons of— ROOP RAM External injuries. 1. A gun shot wound i" x i" x piercing the abdominal cavity on the left of mid line on anterior abdominal wall 3" away from the mid line and 4-1/2" above and to the left of umbilicus Charring of wound margin and clotted blood over it. A wound of entry. 2. 1. A gun shot wound i" x i" x piercing the abdominal cavity on the left of mid line on anterior abdominal wall 3" away from the mid line and 4-1/2" above and to the left of umbilicus Charring of wound margin and clotted blood over it. A wound of entry. 2. A gun shot wound 1/4" x 1/4" x piercing the abdominal cavity lying 3" to the left of injury No.1 Charring of wound margin present. A wound of entry. 3. A gun shot wound 1/4" x 1/4" x piercing abdomen, lying on the left 4" away from injury No. 2. Charring present. A wound of entry. 4. A gun shot wound 1/4" x 1/4" x piercing the abdomen lying 2-1/2" to the left of injury No. 3. Margins scorched. Charring. A wound of entry. 5. Contusion 5" x 1" on the anterior abdominal wall lying obliquely, parallel to groin 2" above it 6. A lacerated wound 1-1/2" x 1/2" x skin deep near the lateral angle of left eye. 7. A lacerated wound 2-1/2" x 1/2"x skin deep 2-1/2" above the right ear lying from infront back wards 8. Contusion 1" x 1/4" on the right cheek. 9. Contusion 1/2" wide below right lower lid. 10. Sub-conjunctival haemorrhage in right eye. Internal injuries Vault—Fracture of right parietal bone below the seat of injury No. 7. Skull—Membranous lobe below the seat of injury i. e. below fracture was congested. Brain—Evidence of haemorrhage over the brain surface. Abdomen—Peritoneum—Lacerated over the large intestines and small intestines and near the lower part. Blood in abdominal cavity. Small Intestines — Clotted and frank blood in guts lying near the liver which is lacerated. Large Intestines—Descending clon lacerated. Frank and clotted blood in it. Liver—Right lobe lacerated on the inferior surface. GOKUL External injuries — 1. A gun shot wound 1/2" x 1/2" x through the thoracic cavity, margins charred, in the left fourth interspace in anterior auxiliary line. A wound of entry. 2. A gun shot wound 1/8" x 1/8" x piercing thoracic cavity lying l-1/2" above and to the right of injury No. 1. Margins charred. Wound of entry. 3. A gun shot wound 1/4" x 1/4" x muscle deep on the front of left shoulder. Margins charred. Wound of entry. 4. A gun shot wound 1/4" x 1/4" x muscle deep on the anterior lateral side of left arm. Margins charred. Margins charred. Wound of entry. 3. A gun shot wound 1/4" x 1/4" x muscle deep on the front of left shoulder. Margins charred. Wound of entry. 4. A gun shot wound 1/4" x 1/4" x muscle deep on the anterior lateral side of left arm. Margins charred. Wound of entry. 5. A gun shot wound 1/4" x 1/4" x muscle deep lying 8" below injury No.I. Margins charred. A wound of entry. 6. A gun shot wound 3/4" x 3/4" x through the thoratic cavity on the right mid auxiliary line in fourth (right) inter space. Internal injuries— Thorax Pleura—Pierced under seat of injury. Right Lung-Lacerated under the seat of injury. Left Lung—Badly damaged under the seats of injuries. Pool of blood mediastinum. Pericardium—Ruptured on postereo-lateral (left) side. Blood in it. Heart—Chambers empty. Pellet found in left ventricle. Abdomen—Pellet taken out from left abdominal wall. HIRA RAM— External injuries— 1. Incised wound 1-1/2"x 1/2"x bone deep on the front of scalp lying horizontally. Clotted blood over the wound. 2. Contusion in an area of 1" diameter over the left eye. 3. Bleeding from right ear. 4. A cut 1/2" long x skin deep behind the right ear in mid-third. 5. A lacerated wound 1-1/2"x 1/2"x skin deep behind the right ear. 6. Confluent contusion in an area of 5"x3i" on the right side of neck. 7. Abrasion 3/4"x 3/4" on the front of right knee 8. Contusion 3"xl" over the left ear area. 9. Abrasion 3/4"x 3/4" on contusion 3-1/2"x l" on the lateral side of left elbow. 10. Abrasion l"x 3/4" on the posterior aspect of left forearm. Vault Fractures— Internal injuries— 1. Linear fracture 4-1/2" long in left temporal parietal region lying horizontally. 2. Depressed radiate fracture in right occipitoparietal region. Fracture in parietal region extends upto frontal suture. Skull— Membranes—Congested : torn in right temporoparietal region. Brain—Lacerated under the seat of injury. Haemorrhage over the brain substance. Heart— Right side full of blood. According to the witness, Durgaram died as a result of head injuries which caused internal haemorrhage, Roopa died on account of rupture of the liver and large intestines which caused severe internal haemorrhage, Gokul died on account of haemorrhage due to the rupture of the lung and heart caused by the gun-shot wounds Hirarams death was caused by the head injury which led to internal haemorrhage. Further, the witness stated that the injuries inflicted on the deceased were sufficient in the ordinary course of nature to cause their death. He also stated about the injuries received by Sewaram (P.W. 4), Kishnaram (P.W. 5), Bhoma son of Bagha (P.W. 6), Rewatram (P.W. 7) and Dayaram (P.W. 8) and by the accused Sahiram, Dharma, Govinda, Poosa, Naria, Kasam and Bhoora. 8. Dr. B.L. Sharma (P.W. 14) examined the injuries of Rewatram, Sewaram, Dayaram and Bhoma by X rays and found that all of them had fractures. 9. While the above is the gist of the prosecution evidence, the accused Mangia, Pokhar, Ummed, Rampal, Choona, Shivlal, Shakoor s/o Gheesa, Kasam, Shakoor s/o Kadar, Poosa, Mubark, Hajt Mohamad and Sadiq pleaded alibi. The accused Shera stated that he knew nothing about the incident, while Harka, Sonaram and Sahiram led evidence to prove that they were not present at the place of occurrence. Ummed stated that he was bed-ridden as he was suffering from guinea worm. Dharma, Govinda, Naria, Wali Mohamad and Bhoora gave a counter version of the incident in which they tried to show that Durgarams party played the aggressive role and inflicted injuries on their party with fire arms and other deadly weapons. 10. The accused examined 32 witnesses in their defence to substantiate their pleas, but it is not necessary to refer to their testimony beyond stating that eight of them gave a counter version that the accused were in fact attacked by the Tats (Durgarams party) without any provocation. 11. It has not been disputed by Mr. Chatterjee, learned counsel for the accused-appellants, that the deaths of Gokul, Durgaram, Roopa and Hiraram were caused by violence at the time and place stated by the prosecution. It is also not disputed by him that the numerous injuries found on the person of the deceased, which proved fatal, were not self-inflicted and that they were sufficient in the ordinary course of nature to cause death. Another point which is not disputed before us and has been proved by over-whelming evidence on record, is that fields bearing Khasra Nos. 460 and 567/1 were in the cultivatory possession of the party to which the accused belonged. Bhomaram (P. W. 2), Bhomaram (P. W. 6) and Rewatram (P. W. 7) have admitted that this was so. Another point which is not disputed before us and has been proved by over-whelming evidence on record, is that fields bearing Khasra Nos. 460 and 567/1 were in the cultivatory possession of the party to which the accused belonged. Bhomaram (P. W. 2), Bhomaram (P. W. 6) and Rewatram (P. W. 7) have admitted that this was so. Besides, Harisingh (P. W. 19), who was the Government Patwari of village Dhanadi Kalan in 1957-59, has stated that some of the accused were cultivating khasra No. 460 from Samvat 2012 and that in Samvat 2013 he recovered the lagan of that field from them. The witness has further clarified that only the lagan was recovered at that time, and not the penalty. He has also stated that the Naadi is about 500 or 600 yards away, and is a small one, and so the vast area comprising Khasra No. 460. "should not have been shown as aghor land". It may also be mentioned in this connection that Mohanraj (D. W. 30), who was the Patwari of the Court of Wards in 1955 when the village was under the courts management, has seated that the land in question was given by him for cultivation to Dharma, Purkha, Poosa and others under Parwana Ex. D. 10 and that corresponding entries were made in the Khatoni and the Girdavari records of the Court of Wards, Reference may also be made to the order (Ex. D. 12) of the Commissioner, Jodhpur Division, dated February 4, 1958, which goes to show that the party of the accused was cultivating the aghor or gochar lands before 1957. It is, therefore, obvious that the accused party was in cultivatory possession of the fields. It is also obvious from the Commissioners order (Ex. D. 12), as well as from the statements of Patwari Hari Singh (P. W. 19) and Tehsildar Kishanmal (P. W. 23), that there was a dispute on that account and that Durgarams party wanted to evict the party of the accused. Ex. P. 99, P. 100, P. 101, P. 103 and P.105 are the various applications of Durgarams party for the purpose, and it was only natural that the relations between the two parties were highly strained and inimical. 12. As has already been stated, Patwari Hari Singh has stated that the accused were not only cultivating the fields but paid the lagan. 12. As has already been stated, Patwari Hari Singh has stated that the accused were not only cultivating the fields but paid the lagan. But even if their possession was considered to be unauthorised, they could be evicted only in accordance with the law. Under sec. 91 of the Rajasthan Land Revenue Act, 1956, any person who occupies or continues to occupy any land without lawful authority, is to be regarded as a trespasser and may be summarily evicted therefrom by the Tehsildar at any time after serving a notice to vacate the land, but sub-sec. (4)(ii)(b) of that section further provides that if the Tehsildar or the person deputed to remove the trespasser "is opposed or impeded in taking possession of such land, the Tehsildar shall apply to a Magistrate having jurisdiction and such Magistrate shall enforce the surrender of the land to the Tehsildar". It would thus appear that the revenue officers were not competent to forcibly evict the party of the accused and had to take recourse to the Magistrates authority in case of opposition. It seems, however, that proceedings for the eviction of the accused, were taken under sec. 183 of the Rajasthan Tenancy Act, 1955, as the Tehsildars order Ex, P. 113 addressed to the Patwari expressly refers to that section. But the position under the Tenancy Act was even more favourable to the accused. Under sec. 183(2) of that Act, a trespasser has the right of tending, gathering and removing the crops and sec. 185 further provides that "every decree or order for ejectment shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), relating to the execution of decrees for delivery of immovable property". It therefore follows that both under the Revenue and the Tenancy Acts, the revenue officers could not themselves use force to evict the accused even if they were deemed to be trespassers nothing to say of Durgarams party. The charge against the accused has therefore to be adjudged in this back ground. 13. Another important fact which emerges from the evidence on record is that Durga Rams party went armed with various weapons because we find that several injuries were inflicted by blunt and sharp-edged weapons, as well as by gun fire, on 7 of the accused persons, namely, Kasam, Poosa, Sahiram, Naria, Dharma, Govinda and Bhoora. 13. Another important fact which emerges from the evidence on record is that Durga Rams party went armed with various weapons because we find that several injuries were inflicted by blunt and sharp-edged weapons, as well as by gun fire, on 7 of the accused persons, namely, Kasam, Poosa, Sahiram, Naria, Dharma, Govinda and Bhoora. Govinda received 11 gun shot wounds on his right arm, forearm and elbow so that his hand had to be amputated. Besides, 5 live cartridges of 12 bore gun were, as stated earlier, recovered by the investigating officer from the place of occurrence, and it is not the allegation of the prosecution that the accused possessed any gun in which those cartridges could have been used, their case being that the accused were armed with three muzzle-loading guns. 14. It may also be mentioned that it has been admitted by all those who have been examined by the prosecution as eye witnesses of the incident, that Durgaram first collected his party at his own dhani and there they decided to go armed in a body and ask the accused not to cultivate the two disputed fields. Bhomaram (P. W. 6) has further stated that Durga Ram told him that he had called 10 persons in order to accomplish this task. According to clause fifth of sec. 141 of the Indian Penal Code, if the common object of the persons composing an assembly is "by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do", that assembly is designated as unlawful assembly. 15. From all those facts it fellows that Durgarams party, which consisted of more than five persons, was obviously an unlawful assembly. The prosecution witnesses have stated that they simply went to ask the party of the accused to refrain from cultivating the aghor land, but we are not prepared to accept this to be so. The fact that they went armed with at least one 12 bore gun and other sharp-edged and blunt weapons as discussed above, unmistakably shows that they went with the common object of ejecting the party of the accused from the aghor land by use of force or show of force. Moreover, they went in a body. The fact that they went armed with at least one 12 bore gun and other sharp-edged and blunt weapons as discussed above, unmistakably shows that they went with the common object of ejecting the party of the accused from the aghor land by use of force or show of force. Moreover, they went in a body. We may here refer to the statement of Bhomaram (P. W. 2) who has stated that "Mangia and his companions had asked us not to go in the fields. Our party said that we would go, and we insisted on it.........Durgaram also gave abuses". But Durgarams party had no right to take law into their hands and eject the party of the accused from their fields by committing trespass into their fields and using criminal force against them. As against this, the accused having not been evicted by due process of law upto July 10, 1959, when the unfortunate incident took place in the vicinity of Chor Bhakri, were entitled to continue in possession of the two fields in question. And once it is held that they had that right, it follows that they were entitled to defend an invasion thereon. 16. It is apparent from the prosecution evidence that Durgarams party knew that the accused were cultivating the fields and, in their turn, the accused might have entertained an apprehension that an intrusion on their land was likely because there is evidence to show that some of them, at any rate, had muzzel-loading guns with them. The four other important facts which are equally well established on the record are that, even according to the prosecution, at least 16 of the accused were not even present at the place of occurrence when Durgarams party arrived there but were peacefully engaged in tilling their fields in the aghor land at a distance of about 200 or 300 paces. This has been admitted by almost all those who have been examined by the prosecution as eye witnesses of the incident. Secondly, it has been admitted by Sewaram (P.W. 4) that the aghor land is all around Chor Bhakri, a part of the fields of the accused had already been cultivated and tilling was actually going on within a distance of 30 or 40 paondas from the place of incident. Secondly, it has been admitted by Sewaram (P.W. 4) that the aghor land is all around Chor Bhakri, a part of the fields of the accused had already been cultivated and tilling was actually going on within a distance of 30 or 40 paondas from the place of incident. Thirdly, when Durgarams party saw some persons standing near Chor Bhakri, they went there instead of going to these fields. Fourthly, Bhomaram (P. W. 2) has admitted that when Durgarams party arrived, accused Mangia and his companions asked them not to go in their fields, but Durgaram gave abuses and his party insisted on going in the fields. These circumstances lead to the natural conclusion that while Durgarams party was bent on committing trespass with the obvious intention of intimidating and annoying the accused and had the avowed object of stopping the accused, by show of force, from cultivating the land although they (accused) were not legally bound to do so, and was an unlawful assembly from the inception, the accused were peacefully employed in cultivating their fields and had no intention to play an aggressive role. In fact they had no possible reason to be aggressive because they were admittedly in possession of the fields for a few years. 17. It has also to be remembered that the relations between the parties were highly strained for quite a long time as has been mentioned above, and it would therefore also follow that accused could take legitimate steps to protect their property. It appears from the letter of Additional District Magistrate, Jodhpur (Ex.D.17) that the party of the accused apprehended a breach of peace and presented an application to the Additional District Magistrate on June 27, 1959, under Sec. 107 of the Code of Criminal Procedure for preventive action on that account. It seems that the tension continued to mount and we are told that no prompt action was unfortunately taken according to law on that application. It would not therefore be fair to hold that if the accused took the precaution of taking two or three muzzleloa-ding guns and lathis etc. with them while going to cultivate their fields in the vicinity of Chor Bhakri on July 10, 1959, they formed an unlawful assembly. It would not therefore be fair to hold that if the accused took the precaution of taking two or three muzzleloa-ding guns and lathis etc. with them while going to cultivate their fields in the vicinity of Chor Bhakri on July 10, 1959, they formed an unlawful assembly. In assembling a little while after the arrival of Durgarams party, which was an unlawful assembly, the accused could not be regarded as members of an unlawful assembly simply because they resisted force, or because the incident ultimately developed into a fight between the two groups. In all these circumstances, the plea of the accused that there was a pre-concerted and unprovoked attack on them, has to be accepted. We may here refer to the decision of the Supreme Court in Gajanand Vs. State of Uttar Pradesh (1) in which their Lordships held that where the members of one group were peacefully employed before the fight began, they could not be convicted of rioting or even of being members of an unlawful assembly merely because they were proved to have resisted force by force. If, therefore, the accused in the instant case clashed with Durgarams party in the circumstances mentioned above, they cannot possibly be convicted of an offence under Sec. 143 or Sec. 147 or Sec. 148 Indian Penal Code for they were not members of an unlawful assembly, and when the charge under Sec. 143 fails there is no scope for the application of Sec. 149 Indian Penal Code either. 18. The question that arises for consideration is that relating to the right of private defence. Mr. Chatterjee, learned counsel for the accused-appellants, has strenuously urged that the accused had such a right both in respect of their person and their property. Before considering that aspect of the matter, it may be pointed out that the prosecution had little justification for modifying the version given in the first information report and for putting forth the allegation that there were two separate incidents the one in which accused Mangia and five others participated and killed Gokul and the other in which all the 22 accused took part and killed three more persons of Durgarams party and injured several others. It would be sufficient to point out that although the first information report was loadged by Bhoma-ram(P.W.2) and Ghamanda (P.W.3) who claim to be eye witnesses, that report clearly shows that there was really one incident only and that Mangia, Pokar, Shera, Harka, Sona and Sahiram were merely present in the aghor land when Durgarams party reached there to prevent them from tilling it. This first report was lodged at 3 P.M. the same day at police station Khedapa which was at a distance of 10 miles and, being the earliest version of the prosecution, it is sufficient to demolish the allegation that there were two separate, though connected, incidents at Chor Bhakri. We therefore take it that there was really one incident, and will proceed to consider the question whether the accused were within their bounds in exercising the right of private defence. 19. In order to arrive at a decision on this aspect of the case, it has to be remembered that seven of the accused persons namely, Kasam, Poosa, Sahiram, Naria, Dharma, Govinda and Bhoora received injuries with blunt and sharp-edged weapons as well as by gun shots. Poosa received a blow on the left parietal eminence which caused a lacerated wound. Accused Naria received one grievous injury and he had two incised wounds, one of which was between the parietal eminences. He also had a lacerated wound on the left lateral malleus. Accused Bhoora was also found to have received an incised wound. Accused Dharma and Govinda received injuries by gun fire and the latter had 11 gun shot wounds on the right arm, forearm, elbow etc , and the damage was so extensive that his hand had to be amputated. The gunshot wound on the post lateral aspect of the right arm of Govinda was 1/2"x 1/2" muscle deep in dimension and the! corresponding exit would measured 1/4"x 3/4"x muscle deep. These dimensions go to support the argument that some one from Durgarams party fired a 12 bore gun and the injuries were caused by the entry and the exit of the bullet and not by shots from muzzle-loading gun. This inference is further strengthened by the fact that five live 12 bore cartridges were actually recovered from the place of the occurrence by the police investigating officer, as has been mentioned earlier. This inference is further strengthened by the fact that five live 12 bore cartridges were actually recovered from the place of the occurrence by the police investigating officer, as has been mentioned earlier. So while the accused had muzzle-loading guns only which have a lesser range and take time to re-load, Durgarams party was in possession of at least one 12 bore gun. It was that party which took the offensive and came to the place of occurrence with the pronounced intention of stopping the accused from cultivating it by taking the law in their own hands. On the other hand, there was no occasion for the party of the accused to resort to violence, because they had nothing to take from Durga Rams party by use of force. The inevitable conclusion therefore is that in recording their statements the witnesses of the prosecution have suppressed a great deal of truth. They have not even explained the injuries of the accused and have not admitted that Durgarams party was armed with any gun or sharp-edged or other weapons. Equally one sided is the version which has been put forth by the accused Dharma, Govinda, Naria, Bhooria and Wali Mohammad that while they were cultivating their fields, a large number of Jats came there, abused them, asked them to leave the cultivation and inflicted injuries with guns and other weapons. The statements of Ibrahim (D.W. 19), Mohan (D.W. 20), Jagannath (D.W. 21), Urja (D.W. 22), Kistoora (D.W. 26), Mool Singh (D.W. 27), Gabrudin (D.W. 28) and Fateh Mohammad (D.W. 32) which are much to the same effect, are equally partisan and do not contain the whole truth. In these circumstances, it is difficult for us to accept the allegation of the prosecution that it were the accused who started the fight. On the other hand, it can safely be inferred from the evidence which has been brought on the record, as well as from the circumstances of the case referred to above, that Durgarams party was unlawful from the inception and that they used dangerous weapons including a gun against the accused who were not members of an unlawful assembly and who had a right to hold the dispute fields in their possession until their eviction by process of law. The accused had, therefore, the right to defend their property and to that right was added the right of private defence of person when Durgarams party resorted to violence with deadly weapons. Some of the accused received grievous injuries nothing to say of an apprehension of such injuries. They also saw Durgarams party using a 12 bore gun. Their right to defend their person, therefore, commenced as soon as a reasonable apprehension of danger to their person and property arose not merely from the the art given by Durgarams party but by the actual use of violence by its members. And once such a right arose, the accused could not possibly be blamed if they made their defence effective. In the fight which seems to have developed between the parties when force was met with force, it could not be expected that the accused would nicely assess the extent of their right of private defence of person and property and modulate their reprisal accordingly. As has been observed by their Lordships of the Supreme Court in Amjad Khan Vs. The State (2), in determining whether the force employed in the exercise of the right was or was not more than what was actually necessary, and whether the circumstances in which a person was placed were or were not such as to warrant the causing of death, it is not right to weigh the facts of the case "in too fine a set of scales, or as some learned Judges have expressed, in golden scales." 19. An argument has been advanced before us by Mr. Gurtu that the party of the accused exceeded their right of private defence and that they turned into an unlawful assembly at the stage at which they decided to exceed that right and that the accused should therefore be held guilty of an offence of culpable homicide not amounting to murder under section 304 read with section 149 Indian Penal Code. The argument has been supported by reference to Nareshi Singh Vs. Emperor(3) in which Mullick J. took the view that if the members of an assembly act with the common object of exceeding the right of private defence, then they are not only all generally guilty of rioting but also the particular offence constituted by such excess of user. The argument has been supported by reference to Nareshi Singh Vs. Emperor(3) in which Mullick J. took the view that if the members of an assembly act with the common object of exceeding the right of private defence, then they are not only all generally guilty of rioting but also the particular offence constituted by such excess of user. The learned judge based his conclusion on the argument that in one sense criminal force is a continuing wrong and there is a limit where the plea of justification ceases to operate and the liability to punishment revives so that if one member in prosecution of the common object of the assembly exceeds that limit every other member shares with him the guilt of his act. With great respect to the learned judge, we do not find it possible to agree with this view. It appears to us that the correct law was laid down in Kunja Bhuiya Vs. Emperor (4) which was considered by Mullick J. and we can do not better than to quote the following observations from that judgment— "Once an attack was made on persons in the lawful exercise of their right over the property in question, they were undoubtedly entitled to the right of private defence, and the only question which can arise after that is whether any members of the party individually exceeded that right. People who were in the exercise of lawful rights cannot be held to have been members of an unlawful assembly, nor. can that assembly become unlawful, by reason of their repelling the attack made upon them by persons who had no right to obstruct them, nor by reason of their exceeding the lawful use of the right they had. We have laid down before, and we desire to lay down again, that the fact of exceeding the right of private defence which a man has cannot make him a member of an unlawful assembly, and he can only be convicted and punished for the individual act which he himself had done in excess of the right of private defence........." We are in respectful agreement with this view. In fact exception 2 to section 300 Indian Penal Code requires that in exceeding the right of private defence of person or property the offender must exercise the right without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. We do nor, therefore find it possible to hold that the accused should be constructively held liable under section 149 Indian Penal Code if any of them exceeded the right of private defence. The other reason why we cannot accept this contention is that the accused were not members of an unlawful assembly at any stage. 20. The only point which remains for decision is whether any of the accused could be said to have exceeded the right of private defence. Accused Mangia, Haji Mohammad and Shakoor son of Kadar have been convicted by the learned Additional Sessions judge under section 302 Indian Penal Code because Bhomaram (P. W. 2), Ghamanda (P. W. 3), Sewaran (P. W. 4), Kishanaram (P. W. 5), Bhomaram (P. W. 6), Rawat Ram (P. W. 7) and Dayaram (P. W. 8) have stated that Mangia fired his gun and killed Gokul while Haji Mohammad and Shakoor son of Kadar fired their guns and killed Roopa. It has, however, not been stated by these witnesses that these accused persons fired more than once from their muzzle-loading guns, and as such they cannot be said to have exceeded their right of private defence of person and property by firing one shot each in the circumstances of this case when the other party of Durgaram was heavily armed and used a 12 bore gun which was a superior fire arm. Mangia, Haji Mohammad and Shakoor son of Kadar are, therefore, protected by sec. 100 of the Indian Penal Code. Accused Govinda has also been convicted of an offence under sec. Mangia, Haji Mohammad and Shakoor son of Kadar are, therefore, protected by sec. 100 of the Indian Penal Code. Accused Govinda has also been convicted of an offence under sec. 302 Indian Penal Code by the learned trial judge and the statements of Bhomaram (P.W. 2), Ghamanda (P.W. 3), Kishnaram (P.W. 5) and Bhomaram (P.W. 6) show that he (Govinda) gave a number of blows with his sword on Durgarams head after he (Durgaram) had fallen down as a result of the lathi blow which was given by accused Dharma on his head, Durgaram was, therefore, not in such a position as to cause an apprehension of death or grievous hurt to Govinda at the stage when he had fallen down and had become half dead on account of his injuries and in inflicting fatal injures on his head, when he was lying in that condition, with a sword, Govinda undoubtedly exceeded the right of private defence of person and property and is guilty of culpable homicide not amounting to murder under sec. 304 Part I of the Indian Penal Code, for his acts would fall within the purview of Exception 2 to sec. 300. We alter his conviction to that section accordingly so far as the death of Durgaram is concerned. Govinda received 11 gun shot wounds on the right arm, fore-arm and elbow soon after he had inflicted the deadly blows on Durgaram, and his right hand had to be amputated. In these circumstances, we consider that it would be sufficient to sentence him to rigorous imprisonment for two years. 21. The accused have also been held liable for the injuries caused to Sewaram (P.W.4), Kishnaram (P.W. 15), Bhoma Ram (P. W. 6), Rawat Ram (P. W. 7) and Dayaram (P.W. 8) Of these, only Sewaram has stated that a pellet of Haji Mohammads gun hit him on the left thumb and caused two lacerated wounds. We have already held that Haji Mohammad fired his gun only once and that in doing so he did not exceed his right of private defence of person and property. The remaining four witnesses of the prosecution have clearly stated that they could not say who caused injuries to them and it is therefore not possible to maintain the convictions of the appellants with respect to those injuries since sec. The remaining four witnesses of the prosecution have clearly stated that they could not say who caused injuries to them and it is therefore not possible to maintain the convictions of the appellants with respect to those injuries since sec. 149 Indian Penal Code cannot be invoked for the reasons mentioned earlier in this judgment. The accused must therefore be acquitted of these charges. 22. So far as the appeal of the State is concerned, it would be enough to say that it is without any force and has to be rejected because we have reached the conclusion that all the appellants except Govinda are entitled to acquittal. 23. In the result, the appeal of the accused persons is allowed to the extent that Mangia, Ummed, Dharma, Rampal, Poosa, Naria, Choona, Shivlal, Mubarak, Wali Mohammad, Shakoor son of Gheesa, Haji Mohamad, Kasam, Shakoor son of Kadar, Sadiq and Bhoora are acquitted of the various offences of which they have been convicted by the learned Additional Sessions Judge. In regard to accused Govinda, the appeal succeeds to the extent that his conviction under sec. 148 and 325/149 Indian Penal Code is set aside and he is acquitted of those offences. Besides, his conviction under sec. 302 Indian Penal Code is altered to that under sec. 304 Part I Indian Penal Code and his sentence is reduced from life imprisonment to rigorous imprisonment for two years. The appeal filed by the State fails and is dismissed. All the appellants, except Govinda, who are in jail shall be released forthwith if not required in any other case. 24. Before parting with the case we would like to observe that although Durgarams party was clearly an unlawful assembly and initiated the fight in which atleast one fire arm and other lethal weapons were used, the police did not, it seems, care to register a case against them and make the necessary investigation. Even if the police felt that the accused Mangia and others were members of an unlawful assembly and committed the various offences for which they were challaned, it was, all the same, the duty of the police to act fairly by proceeding against the other party also. The one-sided action taken in this case cannot be said to be proper and we hope a lapse of this nature will not be allowed to recur.