Judgment M.R.Verma, J. 1. Out of the ten petitioners, seven have been found guilty under Sec. 427 of the Indian Penal Code and sentenced to undergo rigorous imprisoment for three months each. They were also found guilty under Sec.143 of the Indian Penal Code, but no separate sentence was passed on that count. Three of the petitioners, namely, Petitioner No. 10 Ganesh, Petitioner No. 7 Jhamlal and Petitioner No. 3 Sundar, were also found guilty, but they were not given any punishment, but were discharged after due admonition under Sec.3 of the Probation of Offenders Act. 2. The occurrence is said to have taken place in village Balaitha, P.S. Sonbarsa, in the district of Saharsa, in the early hours of the 26th/27th November, 1967. It is said that these petitioners, along with others, raided the field of the complainant Hariballabh Jha, whose master was Brajeshwar Thakur. He found that Meth crops were being grazed by 20-25 heads of buffaloes and the petitioners were cutting and removing the crops also. The complainant raised hulla which attracted the prosecution witnesses who saw the occurrence. According to the complainant, damage worth Rs. 600 was caused to him. The motive for the occurrence is said to be enmity between Brajeshwar Thakur and some of these petitioners. Both the Courts below have found the occurrence as having been completely proved, and it is against this order of conviction and sentence that the present revision application has been filed. 3. Mr. Brahmanand Singh, learned Counsel appearing for the petitioners, has raised two points before me. The first contention is that, though this petition has been admitted on the question of sentence only, he could show from the evidence that the charges were not brought home to the petitioners. In support of his contention, he placed before me the case of Suggi Bind V/s. State, AIR 1968 Pat 382 , In that case, this Court held that, even when the revision has been admitted on the question of sentence only, the hands of the revisional Court are not fettered in scrutinising the evidence and to come to a conclusion whether the charge had been established or not. He has argued that it was not possible for these petitioners to have gone there in a body and get the Meth crop damaged in the early hours at about 3 a. m. and it is also not possible for the prosecution witnesses, who are residents of village Balia, to go there on hulla and to witness the occurrence. No person from village Balaitha, where the field lies, had been examined on the point of occurrence. As observed in the judgment of the lower appellate Court, there is no evidence that there is any house near the place of occurrence and the basti portion of Balaitha is at a distance of 5-7 rassis from the place of occurrence. There is further evidence to show that Balaitha and Balia have a common boundary. The Appellate Court has remarked that two of the witnesses cannot be said to be interested, but they are quite independent. The evidence does not show that the residents of Balaitha also appeared at the place of occurrence, because only in that case the argument would have been available that they were independent persons and some of them ought to have been examined in the case. The evidence does not show that any person from village Balaitha had come there. Of course, in all criminal cases mostly partisan witnesses are examined, and it would not be a healthy procedure to reject their evidence only on account of interestedness. In such cases, the Court has to see their evidence with caution and, in the words of felicitous metaphor, separate the grain from the chaff. Learned Counsel has taken me through the evidence of the four eye-witnesses who have spoken about this occurrence. I find that they are not consistent as to the actual part played by these petitioners for the offence of mischief. P. W. 1 stated that some of these petitioners were getting the Meth crop grazed; some were themselves cutting the crop, while some others were removing the same. P. W. 2 has stated that these petitioners were getting the Meth crop grazed, while others (non-accused) were cutting the crops and taking them away. The third witness, P. W. 3 has stated that the accused persons were taking away the Meth crop after cutting the same. In cross-examination, he admitted that none of the accused persons carried away any bojha of the cut crop. The third witness, P. W. 3 has stated that the accused persons were taking away the Meth crop after cutting the same. In cross-examination, he admitted that none of the accused persons carried away any bojha of the cut crop. The evidence of P. W. 4 is identical to that of P. W. 1. It can, therefore, be seen that there is no consistent evidence as to which of the accused persons specifically cut the crop. Learned counsel for the opposite party, Mr. Brajeshwar Mallick, has argued that, under Sec. 437 of the Code of Criminal Procedure, those persons would also be guilty who were getting the crop damaged, that is, allowing the buffaloes to graze the crop. One view may be that those persons who themselves indulged in the act of mischief should be held guilty, but illustration (h) under Sec. 425 of the Indian Penal Code shows that mischief can be done through the agency of some other being or person. This illustration reads- "A causes cattle to enter upon a field belonging to Z, intending to cause and know-Ing that he is likely to cause damage to Zs crop. A has committed mischief." So, if the evidence is complete and reliable then, all these accused persons were supervising the damage being done to the crop by their cattle and they could be convicted under Sec. 427 of the Penal Code. But, as I have already shown, the evidence of the eye-witnesses is discrepant and no reliance can be placed upon their evidence. There is no specific evidence as to which of the accused persons were getting the crops grazed and which of them were not. In such circumstances, I cannot hold all of them guilty under Sec. 427 of the Penal Code. In view of the discrepant evidence of the prosecution witnesses, the benefit of doubt should be given to these petitioners and, therefore, they are acquitted of the charge under Sec. 427 of the Indian Penal Code. 4 Learned Counsel for the petitioners has further argued that, in view of the charge under Sec. 427 of the Indian Penal Code not having been established, the charge under Sec.143 of the Indian Penal Code should also fail. I am not prepared to accept this argument. 4 Learned Counsel for the petitioners has further argued that, in view of the charge under Sec. 427 of the Indian Penal Code not having been established, the charge under Sec.143 of the Indian Penal Code should also fail. I am not prepared to accept this argument. Whoever is a member of an unlawful assembly can be punished because being a member of an unlawful assembly is itself a separate offence. All these persons had left their houses in that early hour of the morning and had gone to the field of the complainant with cattle and damaged the crops through their cattle. Some of them themselves cut away the crops and some of them carried the cut crops also. They have been acquitted of that charge not because the occurrence has been disbelieved, but because the evidence is not sufficient to warrant a conviction. In that view of the matter, there is no escape for these petitioners from being punished under Sec.143 of the Indian Penal Code. 5. The question then remains as to whether this Court can impose any sentence on the petitioners under Sec.143 of the Indian Penal Code when no separate sentence had been passed against them by the Courts below. This matter came to be directly considered by the Supreme Court in Jayaram Vithoba V/s. State of Bombay, AIR 1956 SC 146 . Their Lordships have discussed the various sub-sections of Sec. 423 of the Code of Criminal Procedure and came to the conclusion that such a course was possible under the provisions of Sec. 423 (1) (d), Which empowers the appellate Court to make any amendment or any consequential or incidental order that may be just and proper. There are cases of this Court also in which such a view had been taken, and I may refer to two Division Bench decisions in Pradip Chaudhry V/s. Emperor, AIR 1946 Pat 235 and Mahabir Singh V/s. State, AIR 1951 Pat 296 . So, after a consideration of all the facts and circumstances of this case, I find that some sentence should be awarded to these petitioners under Sec.143 of the Indian Penal Code. Three of the petitioners, namely, Sunder, Jhamlal and Ganesh, have been let off after admonition under the provisions of Sec.3 of the Probation of Offenders Act. I do not propose to alter their conviction or sentence. Three of the petitioners, namely, Sunder, Jhamlal and Ganesh, have been let off after admonition under the provisions of Sec.3 of the Probation of Offenders Act. I do not propose to alter their conviction or sentence. The remaining seven petitioners should not be sent to jail again because it is stated that they were behind the bars for about 12 days. It is not desirable to pass a sentence of imprisonment for a short term because that gives an opportunity even to a first offender to become contaminated in the company of hardened criminals in jail. I think the ends of justice would be met if the seven petitioners are sentenced to pay a fine of Rs. 50.00 each, or, in default, to undergo rigorous imprisonment for a period of one month, and I direct accordingly. Out of the fines, if realised, a sum of rupees two hundred shall be paid to P. W. 5 Brajeshwar Thakur. 6. With the above modification in the sentence, the application is dismissed.