JUDGMENT : B. K. Patra, J. - Both these appeals arise out of a common judgment in Session Trial No. 27 of 1966 on the file of the Sessions Judge, Puri. Raghu Kandi Appellant in Criminal Appeal 31/67 who was the first accused in the trial Court is convicted u/s 302, Indian Penal Code, for causing the death of one Udi Kandi and sentenced to rigorous imprisonment for life. Raghu and all the Appellants in Criminal Appeal 21/67 are convicted u/s 148, Indian Penal Code and each is sentenced to undergo rigorous imprisonment for six months, the sentence of Raghu thereunder to run concurrently with the sentence imposed on him for his conviction u/s 302, Indian Penal Code. Dusi Kandi and Siria Kandi Appellants 8 and 9 respectively in Criminal Appeal 21/67 are further convicted u/s 323, Indian Penal Code and sentenced to undergo rigorous imprisonment for three months, the sentences to run concurrently with the sentences imposed on them for their conviction u/s 148, Indian Penal Code. 2. The prosecution case may be briefly stated. Puni Bewa, the widow of one Bira Kandi was in exclusive possession of her husband's properties including the disputed bamboo clump situated in her Bari. About two years before the occurrence, Sadhu Kandi (Appellant No. 5) put up a false claim that he was the adopted son of Bira Kandi and started disputing Puni's exclusive right in her husband's properties. On the date of occurrence, namely, 19-3-1966, Sadhu Kandi came to out bamboos from the Bari of Puni Bewa accompanied by all the other Appellants of whom some were Tadas (heavy bamboo lathis) and Raghu Kandi was holding a Khunta (a sharp edged weapon). Sadhu Kandi and Appellants Dusi Kandi, Jagua Kandi, Gandharba Kandi and Pahali Kandi cut some bamboos from the bamboo clump, whereupon Puni Bewa went there and protested as to why they were cutting barn boos from her clump and said that she would not allow them to take them. So saying, she picked up four or five bamboos. Appellant No. 10 Fagu Kandi snatched the bamboos from her hand and abused her in filthy language and directed other Appellants to beat her. Dusi Kandi struck her a blow with a Tada on her right thigh while Fagu assaulted on her waist with another Tada. So saying, she picked up four or five bamboos. Appellant No. 10 Fagu Kandi snatched the bamboos from her hand and abused her in filthy language and directed other Appellants to beat her. Dusi Kandi struck her a blow with a Tada on her right thigh while Fagu assaulted on her waist with another Tada. She then raised an alarm hearing which P.w. 1 came the spot and protested as to why they were beating a female instead of settling the dispute amicably. P.w. 1 was then assaulted by Dusi on his waist. When he raised an alarm, his brother Udi Kandi came from the nearby Pan Baraj and simultaneously P.ws. 4, 5 and 8 also arrived at the spot and protested against the high-banded action of the Appellants. Thereupon, Appellant Raghu Kandi pierced a Kunta into the left thigh of Udi Kandi and while the latter was retreating, Siria (Appellant No. 9) attacked him with a Tada and struck him on the vault of the bead causing a bleeding injury. While Udi was going away, Raghu chased him and pierced a Kunta on the left side of his chest as a result of which Udi fell down there and died. Udi's wife (P.w. 3), ran to the rescue of her husband but she was assaulted. P.w. 4 was assaulted by Fagu on his left thumb, P.w. 5 was assaulted by Siria on his head and p.w. 8 was assaulted by Dusi Kandi with a Tada. The accused persons then fled away from the spot carrying away their weapons. P.w. 1 Madhab Kandi then went to Kakatpur Police Station and lodged information, but in the F.I.R., he did not state that his brother Udi Kandi was dead. All that he stated was that Udi was lying at the place of occurrence being severely injured. He did not specify who caused injuries to him. That very afternoon the Investigating officer reached the spot, held inquest over the dead body and Bent it up for post-mortem examination. The doctor P.w. 7 found the following injuries on the person of the deceased; (1) A lacerated wound with jagged and inverted margins 2.1/2" x 1" in the middle x 1/3" lying from before back-wards on the scalp 4" above the hair line of the fore-head with evidence of moderate bleeding. The doctor P.w. 7 found the following injuries on the person of the deceased; (1) A lacerated wound with jagged and inverted margins 2.1/2" x 1" in the middle x 1/3" lying from before back-wards on the scalp 4" above the hair line of the fore-head with evidence of moderate bleeding. (2) A punctured wound penetrating with sharp regular and inverted edges oval in shape 3/4" x 1/2" x 8" lying transversely 6" below the left arm-pit with signs of severe bleeding. (3) Incised wound with clean Cut regular and everted margins 1" x !" X 1" lying vertically on the medial side of left thigh 4" above left knee with evidence of moderate bleeding. On dissection it was found, that corresponding to the injury No. 2 above, the 9th rib of the left side was fractured leading to rent in pleura and the left lung piercing at the upper part of the lower lobe and then entering into the left ventricle in front aspect above the apexs. The left side of the chest cavity and the left lung were filed with dark liquid blood. In the opinion of the doctor, it is injury No. 2 which proved to be fatal. Injuries 1 and 3 were certified by him to be simple. 3. On the prosecution side, four persons, namely, P.ws. 1, 2, 5 and 6 were found injured and on police requisition they were examined by p.w. 9 who found that P.w. 1 Madhab bad a lacerated wound over the right side of the fore-bead; Puni (P.w. 2) had a swelling over the right thigh; Sankar (P.w. 5) had a lacerated wound on the scalp and another lacerated injury on the middle finger of the right band; and P.w. 6 Kanchan Dei had a tenderness on her left waist (Exts. 2, 3, 4 and 7). P. dws. 3, 4, and 8 were also sent for medical examination but found not to have any injuries on their persons. 4. On the side of the accused Appellants Denga Bisi (A/4) and Kasi Kandi (A/7) had injuries on their persons and they were also medically examined. Denga Bisi was found to have one punctured wound on the back side of his left chest while Kasi Kandi had a swelling on his left palm. 5. 4. On the side of the accused Appellants Denga Bisi (A/4) and Kasi Kandi (A/7) had injuries on their persons and they were also medically examined. Denga Bisi was found to have one punctured wound on the back side of his left chest while Kasi Kandi had a swelling on his left palm. 5. Of the 11 Appellants in the two appeals, four Appellants, namely, Raghu, Jagu, Pahali and Siria denied being present at the place of occurrence. While Raghu stated that he was engaged in harvesting his Kulthi crop in a field at some distance from the place of occurrence, the other three pleaded that they were absent from the village that day. All the other Appellants admitted their presence at the place of occurrence but their version of the occurrence is this; the Disputed bamboo clump belonged jointly to Bira Kandi and Netra Kandi Sadhu Kandi is the adopted son of Bira Kandi who is dead. On the date of occurrence, Appellants Dusi Kandi, Fagu Kandi and Denga Kandi were engaged as Mulias by Netra Kandi to cut bamboos from the clump and they with Sadhu Kandi went to the spot and cut bamboos from the clump. After they had cut about 40 pieces of bamboos, Puni came there and cut 8 pieces of bamboos and started removing them. Sadhu objected to this. She then shouted for help bearing which the deceased Udi Kandi along with P.ws. 1, 4, 6, and Naran Muduli, Sankar Kandi and others came to the spot holding Tadas. Madhab (P.w. 1) who did not come with any Tada took a Katuril which Puni was holding and inflicted a blow with it on the back of Denga Bisi. When Kasi protested, he was given a blow with the Katuri on his left arm. P.w. 4 then assaulted Fagu with a Tada on his hand and latter retaliated. The deceased Udia struck Dusi Kandi with a Tada on his head and the latter snatched the Tada from him and struck Udi Kandi on his head. On receiving this blow Udi Kandi fell down on the bamboo clumps and thereafter the Appellants present there left the spot. 6. It is clear from what is stated above that a souffle did take place near the bamboo clump of P.w. 2 on the date of occurrence and that in the course thereof Udi died. On receiving this blow Udi Kandi fell down on the bamboo clumps and thereafter the Appellants present there left the spot. 6. It is clear from what is stated above that a souffle did take place near the bamboo clump of P.w. 2 on the date of occurrence and that in the course thereof Udi died. An attempt was made by the defence to show that Udi Kandi as a result, of a fall on the bamboo stumps. The doctor P.w. 7 who held the post-mortem examination over the dead body was cross-examined at length regarding the possibility of Udi Kandi sustaining the fatal injury as a result of his fall on bamboo stumps. The doctor definitely ruled out such a possibility. In view of his definite opinion that, a sharp pointed weapon bad caused the fatal injury, be stated that the edges of the bamboo stumps may be sharp looking but not sharp and that although they can cause a punctured wound, the margins thereof would be lacerated and not clean-out like injury No. 2 found on the person of the deceased. The learned Sessions Judge has discussed this aspect of the case at great length and has given good and cogent reasons, with which we agree, for holding that the fatal injury on the deceased was caused by a sharp-edged weapon like a Kunta. It may be stated that Mr. S. Mohanty, learned Advocate appearing for the Appellants has also not seriously challenged the correctness of this finding. 7. The next question is whether it is Appellant Raghu Kandi who caused this fatal injury. P.ws. 1, 2, 3, 4, 5, 6, 8 and 10 have deposed that it is Raghu who caused the fatal injury on the deceased. S. Mohanty, learned Advocate appearing for the Appellants has also not seriously challenged the correctness of this finding. 7. The next question is whether it is Appellant Raghu Kandi who caused this fatal injury. P.ws. 1, 2, 3, 4, 5, 6, 8 and 10 have deposed that it is Raghu who caused the fatal injury on the deceased. Apart from the general criticism that the witnesses who have spoken about the occurrence are partisan witnesses, in the sense that they were backing up the cause of the Puni Bewa as against Sadhu, the two main criticisms levelled against the prosecution case in so far as it relates to the alleged assault by Raghu on the deceased are: (1) that in the First Information Report which was lodged immediately after the occurrence by Madhab (P.w. 1), the brother of the deceased, he had neither stated about the infliction of the fatal injury on the deceased and much less that Raghu had inflicted it ; and (2) that there is variance between the statements made by the eye-witnesses before the Police and in the Court as to the position in which the deceased was when he received the fatal injury. The second point assumes importance because it is the definite opinion of the doctor (P.w. 7) that when the injury was inflicted transversely, it is necessary that the victim should have been on a higher level than the hand of the assailant at the time the injury was inflicted. 8. It is pointed out by the learned Counsel for the Appellants that although the eye-witness have deposed in the trial Court that Raghu dealt the fatal blow on the deceased while the latter was in a standing position (in which case their evidence will be consistent with the medical evidence) they had stated before the Police during investigation that the deceased was sitting when he received the fatal blow (in which case the evidence would not fit in with the medical evidence). On a careful analysis of the statements made by these witnesses before the Police as elicited from the Investigating officer during his examination in Court, the criticism of the learned Advocate does not appear to us to be justified. On a careful analysis of the statements made by these witnesses before the Police as elicited from the Investigating officer during his examination in Court, the criticism of the learned Advocate does not appear to us to be justified. P.w. 1 Madhab Kandi who lodged F.I.R. not only did not name Raghu as the person who caused the fatal injury to the deceased, but he stated in the F.I. It., in clear terms, that he would not be able to say which of the accused persons assaulted the several members of the prosecution party. P.w. 1's evidence in Court that Raghu inflicted the fatal injury on the deceased can therefore be discarded. Regarding other eye-witnesses who have spoken about Raghu inflicting the fatal injury on Udi Kandi it is not elicited from the Investigating officer that during investigation they did not make similar statements before the Police. Every one of these witnesses has categorically stated in the trial Court that the deceased Udi Kandi was in a standing position when he was stabbed near the chest by Raghu. It was not brought out in evidence that any of them bad stated before the Police during investigation that Udi Kandi was in a sitting position when he was stabbed. It was no doubt elicited from the Investigating officer that p.w. 3 Sushila, the widow of the deceased and Nabaghana Das p.w. 4 had stated before him that after Siria Das gave a lathi blow on the bead of Udi Kandi, the deceased, the latter sat down with bleeding injury, that thereupon Sushila p.w. 3 came there and while holding Udi to take him home, Raghu Kandi came with his Kunta and pierced on the left chest and left thigh of the deceased. From these statements it was sought to be argued that Udi was in a sitting position when he received the fatal injury from Raghu. Such an inference does not follow from the above statements, because these statements do not show that p.w. 3 held her husband while he was still sitting on the ground and that it was while he was sitting on the ground that Raghu stabbed him. These statements are quite consistent with the evidence given by the witnesses in Court that while p.w. 3 was taking back her husband from the spot Raghu stabbed him. These statements are quite consistent with the evidence given by the witnesses in Court that while p.w. 3 was taking back her husband from the spot Raghu stabbed him. The general criticism that the prosecution witnesses who have deposed about the occurrence are all supporters of p.w. 2 Puni Bewa and that as such their evidence should not be accepted, is also not acceptable in the absence of any evidence to show that any disinterested witness was present at the spot but was not examined by the prosecution. That apart, Puni had a dispute with Sadhu but not with Raghu. That being so, it is not explained why these witnesses, if they really wanted to falsely implicate any body on the charge of murder, should have implicated Raghu instead of Sadhu. We are therefore satisfied, on a consideration of the evidence and the circumstances of the case that the prosecution has proved beyond all reasonable doubt that the fatal injury on the deceased Udi Kandi had been caused by accused Raghu and that the finding of the learned Sessions Judge on this score is correct. 9. All the Appellants have been convicted of the charge u/s 148, Indian Penal Code. The charge against them is that they were members of an unlawful assembly, the common object of which was to out and remove forcibly the bamboos from the disputed bamboo clump in the possession of Puni Bewa and at that time they were armed with deadly weapons such as Kuntas and lathis. As already indicated, the defence is that of the Appellants, Raghu, Jagu, Pahal and Siria were not at all present at the spot. It is admitted that Sadhu went to the place of occurrence to out bamboos accompanied by Dusi, Fagu and Denga Bisi, the mulias of Netra and that all the four of them had cut bamboos from the clump. They justify the cutting on the ground that this bamboo clump was the joint property of Bira (husband of p.w. 2) and Netra, that Sadhu, who is the adopted son of Bira, was in possessions of the same with his mother (p.w. 2) and that Netra as a co-sharer was entitled to cut the, bamboos. They justify the cutting on the ground that this bamboo clump was the joint property of Bira (husband of p.w. 2) and Netra, that Sadhu, who is the adopted son of Bira, was in possessions of the same with his mother (p.w. 2) and that Netra as a co-sharer was entitled to cut the, bamboos. So far as the other Appellants are concerned, they do not admit having accompanied Sadhu, Dusi, Fagu and Denga Bisi to the spot but they say that they came there later on bearing the commotion. There is no evidence to show that Dusi, Fagu And Den go. Bisi are the labourers engaged by Netra and that the latter had deputed them to cut bamboos from the disputed clump on the date of occurrence. A perusal of the prosecution evidence shows that, the claim of Sadhu as the adopted son of Bira is not absolutely unfounded. Certain documents have been produced in this case on the side of defence to show that Bira bad adopted him. But it, is equally clear from the evidence that Puni Bewa was disputing the alleged adoption of Sadhu by Bira and the legality of certain alienations made by Puni Bewa of the properties left by her husband was being disputed by Sadhu claiming as Bira's adopted son. One such dispute related to the alienation of certain properties made by Puni Bewa in favour of one Naran Muduli which ultimately culminated in a proceeding u/s 145, Code of Criminal Procedure between Naran and Sadhu which was pending disposal by the time the occurrence took place. An attempt was made by the defence to show that by the date of occurrence, Sadhu was also living with Puni. Apart from the fact that it is highly improbable having regard to the circumstances enumerated above that there could be any truth in their suggestion, no evidence has been let in by the defence that such was the case. On the other hand, there is evidence to show that Sadhu was living with Netra who had grown old and was nursing him. In these circumstances, we are unable to accept the defence contention that by the time this occurrence took place, Sadhu was in possession of the disputed bamboo clump. If at all, Sadhu was only trying to enforce his right to the bamboo clump as the adopted Bon of Bira. 10. In these circumstances, we are unable to accept the defence contention that by the time this occurrence took place, Sadhu was in possession of the disputed bamboo clump. If at all, Sadhu was only trying to enforce his right to the bamboo clump as the adopted Bon of Bira. 10. Section 141, Indian Penal Code defines an unlawful assembly, and in its five clauses are enumerated the elements required in order to make an assembly an unlawful assembly. The requisites are that there must be five or more persons and their common object should be one of the objects mentioned in the five clauses. We are here concerned with the fourth clause which runs as follows: 141. Unlawful assembly-An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is xx xx xx xx Fourth-by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which i. e. is in possession or enjoyment, or to enforce any right or supposed right; xxxxxxxx If a person is already in possession of a property and he gathers 5 or more persons to defend such possession, be would be doing 80 to maintain his possession and such action would not be illegal and the assembly would not be unlawful. But, if he is not in possession of the property, but has got only right to acquire possession, and if he with 5 or more persons goes to the property to acquire it by force that would be unlawful, because that would be a case of enforcing a right. There is a difference between "to maintain or defend a right" and "to enforce a right or supposed right". What Section 141 Penal Code prohibits is to enforce a right or a opposed right and not maintaining or defending such right. There is a difference between "to maintain or defend a right" and "to enforce a right or supposed right". What Section 141 Penal Code prohibits is to enforce a right or a opposed right and not maintaining or defending such right. The evidence in this case shows that when Sadhu accompanied by some men went to cut bamboos from the clump on the date of occurrence, he did so to enforce his right therein as against Puni Bewa (p.w. 2) who was in possession thereof and if there is evidence to show that at least four others besides Sadhu shared this object, they would constitute an unlawful assembly. It is admitted by the defence that besides Sadhu, Appellants Dusi, Fagu and Denga Bisi went with Sadhu and that all the four of them did out bamboos from the clump. P.ws. 1 to 4 have deposed that they saw Sadhu, Dusi Pahal, Jagu and Gandharba cutting bamboos from the disputed clump and we see no reason to disbelieve their testimony. We have already found that Raghu was Dot only present with them, but also it is he who later caused the fatal injury to Udi Kandi. The Appellants therefore constituted an unlawful assembly which had the common object to enforce the right which Sadhu claimed to have in the disputed bamboo clump. As in prosecution of their common object they used force against the prosecution party, they would also be guilty of rioting. 11. The question then is whether the three other Appellants, namely, Siria, Jadu and Kashi were members of the unlawful assembly. According to the prosecution case, all these three Appellants were also present at the place of occurrence armed with Tades along with others. But out of them it is alleged only against Siria Kandi that is did some overt acts in causing injuries to some of the members of the prosecution party. P.ws. 2, 3 and 4 have deposed that Dusi Kandi and Siria Kandi had assaulted p.w. 2. There is also overwhelming evidence to show that Siria Kandi had assaulted the deceased on his head with a Tada and that he had also assaulted Shankar (p.w. f). It is thus established that the Appellants Siria Kandi was also a member of the unlawful assembly and is guilty of rioting. 12. There is also overwhelming evidence to show that Siria Kandi had assaulted the deceased on his head with a Tada and that he had also assaulted Shankar (p.w. f). It is thus established that the Appellants Siria Kandi was also a member of the unlawful assembly and is guilty of rioting. 12. As against the two other Appellants, namely, Jadu Kandi and Kasi Kandi, no overt acts are either alleged or proved. It is not that before a person is held to be a member of an unlawful assembly it must be shown that he has committed some illegal or overt act or has been guilty of some illegal omission in pursuance of the common object of the assembly. What all is necessary to prove against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object is defined by Section 141, Indian Penal Code. It is while determining this question, it becomes necessary to consider whether the assembly consisted of some persons who were merely passive witnesses and had jointed the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In other words, if it is proved against a person that he was present along with other members who constituted the unlawful assembly and joined them in committing some overt acts that would be an important circumstance to prove that he was himself a member of the unlawful assembly and shared its common object. But, where such overt acts are not proved against any particular individual, he may still be one of the members of the unlawful assembly or he may not, and was present there only as an idle spectator. The mere fact that the other Appellants were found present at the spot holding Tadas is not therefore decisive because in villages people sometimes go about with lath is for no ostensible reason. Admittedly, the party of the accused was the first to arrive at the spot and it is only after forty bamboos were cut by Sadhu and his associates that the prosecution witnesses arrived there. Admittedly, the party of the accused was the first to arrive at the spot and it is only after forty bamboos were cut by Sadhu and his associates that the prosecution witnesses arrived there. The very fact that Sadhu accompanied by several persons went to the spot to assert his right and cut bamboos in an event sufficient in the village to draw a crowd to the spot as having regard to the disputes between Sadhu and Puni, the villagers would naturally have expected a clash between the parties. We therefore find that so far as Appellants Jadu Kandi and Kasi Kandi are concerned, there is no satisfactory evidence to convince us beyond all reasonable doubt that they shared the common object of the unlawful assembly although their presence has been proved by the prosecution. These two Appellants are therefore entitled to the benefit of doubt and should be acquitted. 13. As against the nine Appellants in the two appeals, namely, Raghu Kandi, Dhusi Kandi, Jagu Kandi, Siria Kandi, Fagu Kandi, Ghandharba Kandi, Denga Bisi Kandi, Sadhu Kandi and Pahala Kandi, who are already found to have committed the offence of rioting, there is sufficient evidence to show that Raghu was armed with a Kunta, Sadhu, Dhusi, Gandharba, Jagu and Pahala were each armed with a Katari and the rest were armed with Tadas. All these are weapons, which used as weapons of offence, are likely to cause death. All these nine Appellants would therefore be guilty of the offence u/s 148, Indian Penal Code. 14. It is argued by Mr. S. Mohanty that as admittedly During this occurrence, two of the Appellants, namely, Denga Bisi and Kashi Kandi had sustained injuries on their persons and as the prosecution has not explained how these injuries were caused, the prosecution case has to be disbelieved in toto. Cases, where failure on the part of the prosecution to explain injuries found on some of the accused persons were considered fatal to the prosecution case, are those where such failure created a doubt in the mind of the Court as to how exactly the occurrence took place. Those circumstances are wanting in this case. Cases, where failure on the part of the prosecution to explain injuries found on some of the accused persons were considered fatal to the prosecution case, are those where such failure created a doubt in the mind of the Court as to how exactly the occurrence took place. Those circumstances are wanting in this case. It is admitted by the defence that Sadhu accompanied by some men went to cut bamboos from the disputed bamboo clump and we have found that be did so to enforce the right which he claimed therein and that the bamboo clump was in possession of Puni Bewa. It is also admitted on the side of the defence that Sadhu and others had actually cut bamboos from the clump. It is thereafter that Puni Bewa came to the spot and protested and on being assaulted she raised an alarm which brought to the spot the other prosecution witnesses. The prosecution evidence is that the members of the party of the accused assaulted several members of the prosecution party. It is not unlikely in such circumstances that some of the members of the prosecution party must have retaliated. After all, the only injury on the defence side requiring explanation is a simple punctured wound on the back of Denga Bisi Kandi, the injury on Kasi Kandi being only a swelling of his left palm. We therefore find that failure of the prosecution to explain how Denga Bisi came to have the punctured wound on his back does not affect the truth of the prosecution case. 15. In the result, we find that the conviction of Appellant Raghu Kandi in Criminal Appeal 31/67 under Sections 302 and 148, Indian Penal Code and the sentences imposed on him are fully justified. Criminal Appeal No. 21 of 1967, we find the prosecution case has not been proved beyond all reasonable doubt against Jadu Kandi and Kasi Kandi. We, therefore, set aside their conviction u/s 148, Indian Penal Code and the sentence imposed on them and direct their acquittal. The conviction of other Appellants in this appeal and the sentence imposed on them therefor are upheld. Criminal Appeal No. 21 of 1967 is thus partly allowed. S. Acharya, J. 16. I agree Final Result : Allowed