JUDGMENT : B.K. Patra, J. - The Petitioners who were tried for various offences by the Assistant Sessions Judge, Cuttack were convicted and sentenced as follows: All the Petitioners were convicted u/s 147 and 426, Indian Penal Code and sentenced to undergo simple imprisonment for one month Petitioner No. 1. Brahamananda Mohanty was also convinced u/s 304, Indian Penal Code and sentenced to simple imprisonment for four years. Petitioners 9 and 16 (Baban Padhan and Sananda Chhatoi respectively) were further convicted u/s 323, Indian Penal Code and each sentenced to pay of fine of Rs. 100/- in default to suffer simple imprisonment for one month. Petitioner No. 7 Kulamani Padhan was convicted u/s 325, Indian Penal Code and sentenced to undergo simple imprisonment for four months. Petitioner No. 12 Ganesh Padhan was convicted u/s 435, Indian Penal Code and sentenced to suffer simple imprisonment for four months and to pay a fine of Rs. 100/- in default to suffer simple imprisonment for one month. 2. The occurrence in this case took place in two phases in village Sumandi. The prosecution case is that p.ws. 1,3, 14 and 18 are in possession of plot Nos. 629, 630 and 631 of the village and had raised Biri crops on the land. Previously there was litigation between these witnesses and some of the accused persons. On 7-1-1965, all the Petitioners came in a body on to the land, uprooted the unripe Biri plants and when p.ws. 1, 3, 14 and 18 protested, Petitioner No. 8 Chaitan Padhan gave lathi blow to p.w. 1 and Petitioner No. 7 Kulamani Padhan gave a similar blow to p.w. 3. P.ws. 1, 3, 14 and 18 thereupon ran away from the spot to their Sahi but they were pursued by the Petitioners. On reaching the Sahi, Petitioner No. 12 Ganesh Padhan set fire to a straw beep of p.w. 11 and thereafter some of the Petitioners assaulted different persons of the prosecution party. A beggar woman Mana Dei seeing the high-handed action of the Petitioners abused them hereupon, Petitioner No. 1 Brahmananda Mohanty gave a blow with lathi on the lower portion of her back and she fell down on the ground and thereafter Brahmananda Mohanty gave another blow on her chest, as a result of which Mana Dei died on the spot. Information was lodged at the Police Station and investigation was taken up. Information was lodged at the Police Station and investigation was taken up. The injured persons were sent up for medical examination and post-mortem examination was also held over the dead body of Mana Dei. In due course, the Petitioners were put on trial. 3. The Petitioners pleaded no guilty and after referring to the litigation between them and p.ws. 1, 3, 14 and 18 in respect of plot Nos. 629, 630 and 631, they stated that during the year of occurrence, these plots of land were laying fallow and that it is not true, as alleged by the prosecution, that Biri crops had been raised thereon. They denied having gone over the lands on the date of occurrence and having damaged any Biri crops said to have been grown on the land. They stated that on the date of occurrence, Petitioners Ganesh Padhan, Mandaradhara Baithalu, Gayadhar Padhan and Kalandi Mohanty were carrying bundles of Biri plants cut from another land of Petitioner Narayan Chhatoi and were passing by the side of Bhoi Sahi, when p.ws. 1, 3, 14 and 18 and some others of the Sahi questioned their right to pass by their Sahi and snatched away Biri plants from them. P.w. 18 then assaulted Mandardhar Senapati (@ Baithalu) (Petitioner No. 6) with a bamboo lathi and the prosecution party then threw brickbats on the Petitioners. The latter retaliated and threw back the brick bats at the prosecution party. Apart from this they denied having assaulted any of the prosecution witnesses. Regarding the death of Manu Dei it was stated by the defence that while she was going back after begging at the house of one Gobinda Rout she fell down on the stone steps of Gobinda's house and died there. One of the Petitioners Banshidhar Chhatoi (Petitioner No. 3) pleaded alibi. The learned Assistant Sessions Judge after a thorough discussion of the evidence let in the case held, (I) that all the Petitioners formed an unlawful assembly, with the common object of committing trespass on the disputed land and to commit mischief end assault" and in pursuance of the said common object, they came over the land and damaged the crops, that some of the Petitioners were armed with lathis and that Kulamani Padhan (Petitioner No. 7) gave a blow with lathi on the bead of p.w. 3; and (2) that after this incident on the land p.ws. 1, 3, 14 and 18 ran away to the Bhoi Sahi and were pursued by the Petitioners and there in the Sahi, Ganesh Padhan (Petitioner No. 12) set fire to the straw beep belonging to p.w. II and further that Baban Padhan (Petitioner No. 9) assaulted p.w. 5 on her left arm causing a fracture, and Sananda Chhatoi gave lathi blow to p.w. 6 causing an injury. 4. When Mana Dei abused the Petitioners for their highhanded action Brahmananda Mohanty (Petitioner No. 1) gave lathi blow on her Lack as a result of which she fen down and thereafter he dealt another blow on her chest as a result of which she died. The learned Judge disbelieved the plea of alibi set up by Banshidhar Chhatoi (Petitioner No. 3) On the aforesaid findings be convicted and sentenced the Petitioners in the manner stated above. 6. The learned Additional Sessions Judge who heard the appeal filed by the Petitioners, after an independent assessment of the evidence on record upheld the findings and affirmed the convictions of the Petitioners and the sentence's imposed on them by the learned Assistant Sessions Judge. Mr. H. Kanungo appearing for the Petitioners assailed the findings of the Courts below mainly on the ground that the witnesses who support the prosecution case are of Bhois and as such are partisan witnesses. The Courts below were fully aware of this criticism and the need therefore to scrutinise their evidence with care. After such scrutiny they pointed out that p.w. 10, although a Bhoi was a respectable witness and the evidence he had given corroborates the testimony of the other Bhoi witnesses who are alleged to be partisan witnesses. After a careful assessment, of the evidence on record they accepted the prosecution version of the case as true. 7. The only other submission made by Mr. Kanungo is that some of the Petitioners received injuries during the occurrence and as the prosecution has failed to explain how these injuries were caused, the Courts below ought to have held that a correct account relating to the occurrence had not been given by the prosecution and as such they should have rejected the prosecution case. 8. On 9-1-1965, the doctor (p.w. 4) examined on requisition by the Police, Mandardhar Boithalu (Petitioner No. 13) and found a 'V' shaped injury on his left leg. 8. On 9-1-1965, the doctor (p.w. 4) examined on requisition by the Police, Mandardhar Boithalu (Petitioner No. 13) and found a 'V' shaped injury on his left leg. The inner limb of the injury was 1?" x ?" and the outer limb was 1?" x ?". The injury was skin-deep. The age of the injury at the time of examination was 36 hours, thereby indicating that it might have been received at the time of occurrence. In his opinion, the injury could be caused by coming in content with any hard and blunt substance even by accident. On the same day, he also examined on Police requisition Ganesh Padhan (Petitioner No. 12) and found two abrasions, one on the outer aspect of his left arm 3 above the left elbow and the other over the dorsal aspect of his right side of neck. The age of the injuries was about 48 hours and, in his opinion, this could be caused by a bard and blunt object like a brickbat. It is not that the prosecution has suppressed the fact that these two Petitioners had received injuries. This was elicited from the doctor (p.w. 4) during his examination-in-chief. P.w. 14 stated during his examination-in-chief that when the prosecution party came away running from the disputed lands to the Bhoi sahi, the Petitioners started throwing brickbats on them from the road and that some of the brickbats struck Mandar and Ganesh. This explanation as to how the two Petitioners Ganesh and Mandar received the injuries, which were very simple ones, was duly considered by the learned trial Judge and he accepted the same. I do not see any reason why the evidence given by p.w. 14 on this point should not be accepted as sufficiently explaining the simple injuries found on the person of the two Petitioners. No other point was urged before me to disturb the findings of the Courts below. The petition is therefore liable to be dismissed. 9. All the Petitioners were found guilty under Sections 147 and 426 Indian Penal Code. The learned trial Judge has sentenced the Petitioners to suffer simple imprisonment for a period of one month for their conviction u/s 147, Indian Penal Code but no separate sentence was imposed for their conviction u/s 26, Indian Penal Code. Having regard to the fact that there is litigation between the parties, in respect of plot Nos. The learned trial Judge has sentenced the Petitioners to suffer simple imprisonment for a period of one month for their conviction u/s 147, Indian Penal Code but no separate sentence was imposed for their conviction u/s 26, Indian Penal Code. Having regard to the fact that there is litigation between the parties, in respect of plot Nos. 629, 630 and 631 and one such litigation was actually pending in Court by the time the occurrence took place, I feel that a sentence of fine instead of imprisonment would meet the ends of justice. I would accordingly set aside the sentence of imprisonment imposed on all the Petitioners for their conviction u/s 147 Indian Penal Code and in lieu thereof sentence each of them to pay a fine of Rs. 100/- in default of payment of which, each will,suffer simple imprisonment for one month. The learned trial Judge has ordered that all the sentences including those awarded in default of payment of fine shall run concurrently. Such a direction is clearly illegal. As provided in Section 64 of the Indian Penal Code any sentence of imprisonment in default of payment of fine has to be in excess and not concurrent with any other sentence of imprisonment to which the accused may have been sentenced. Where a Court imposes two sentences of imprisonment on an accused person and orders him to pay fine on each of the two counts with imprisonment in default of payment of fine, it may order the substantive terms of imprisonment to run concurrently but the terms of imprisonment inflicted in default of payment of fine must run consecutively. Section 35 of the Code of Criminal Procedure only authorises concurrent punishments in the case of imprisonment. In this case, the only two Petitioners who are sentenced to substantive terms of imprisonment are Petitioner No. 1 Brahmananda Mohanty and Petitioner No. 12 Ganesh Panhan. Ganesh Panhan is also sentenced to pay a fine of Rs. 100/- for his conviction u/s 435, Indian Penal Code and in default to suffer simple imprisonment for one month. Roth these Petitioners have also been sentenced to pay a fine of Rs. 100/- for their conviction u/s 147 Indian Penal Code and in default to suffer simple imprisonment for one month. 100/- for his conviction u/s 435, Indian Penal Code and in default to suffer simple imprisonment for one month. Roth these Petitioners have also been sentenced to pay a fine of Rs. 100/- for their conviction u/s 147 Indian Penal Code and in default to suffer simple imprisonment for one month. The Petitioners through their learned Advocates were called upon to show cause why the aforesaid direction of the learned trial Judge should not be quashed and an order passed that the sentences awarded in default of payment of fine shall be in excess of the substantive sentence of imprisonment. It is conceded on behalf of the Petitioners that the aforesaid direction is legal and contrary to provisions of Section 64 Indian Penal Code. I would, therefore, direct that the terms of imprisonment which they will undergo in default of payment of fines imposed on theme will not run concurrently with their substantive terms of imprisonment, but would be in excess of it. 10. Subject to the modifications in the sentences as indicated above, the revision petition is dismissed. Final Result : Dismissed