Judgment 1. This revision has been filed by the accused persons, Satyadeo Singh, Kailash Saran Singh and Ram Lakhan Yadav. The first two come from village Beri and the third from village Majhanpura, within the same police station Bikram (Patna). They were all charged under Sections 144 and 430 of the Indian Penal Code. The Magistrate, however, found the latter charge not substantiated, and accordingly, acquitted them of it. As regards the first charge under Sec. 144 he found it duly proved against all the three and sentenced them to suffer rigorous imprisonment for two months each. On appeal to the Sessions Judge their conviction and sentence were upheld and the appeal was dismissed, vide judgement dated 26-6-1969 of the Assistant Sessions Judge. Being aggrieved, they have filed this revision. 2. The case of the prosecution was that on 23-10-1966 Nandu Rai and others were irrigating their lands from the canal through village channel. All of a sudden at about 11 P.M. the supply of water in the channel fell down. At this they all went up the canal to find out its reason. In course of that, they reached near Majhanpura Beri bridge where they found a big cut in the northern bank of the canal through which water was flowing down. At that place bit the torch light flashed by one of them they noticed 15 to 20 persons including these accused standing armed with deadly weapons like garasa, bhala etc. Of those persons they identified these three accused. When they wanted to fill up that cut they were prevented from doing so by those persons who also became ready to fight. Thereafter, they went to Bikram and filed a written petition (Ext. 1) to the Assistant Engineer that very night who in his turn, forwarded that petition to the Bikram police for information and necessary action with his forwarding note (Ext. 3). 3. On the basis of the above petition, the Assistant Sub-Inspector of Police (P.W. 8) registered a case and took up its investigation. He visited the place of occurrence on 26-10-1966 in the after-noon and found a cut measuring 9 x 1/2 x 3 in the canal bank. 3). 3. On the basis of the above petition, the Assistant Sub-Inspector of Police (P.W. 8) registered a case and took up its investigation. He visited the place of occurrence on 26-10-1966 in the after-noon and found a cut measuring 9 x 1/2 x 3 in the canal bank. He also examined witnesses and made over charge of the case to the Officer-in-charge of the Police Station, who, after perusal of the case diary, submitted charge sheet against these three accused on 29-10-1966 under Sec. 430 of the Indian Penal Code. 4. In course of the trial, they were, as observed about, charged under two Sections, 144 and 430 of the Indian Penal Code. As it appears from the judgement of the Magistrate, he acquitted them of the charge under Sec. 430 because there was no evidence before him to show that any of them had made the alleged cut in the canal embankment causing diminution in the supply of water. Both the courts have, however, on examination of the materials on record held the charge under Sec.144 duly proved against them. The Magistrates finding in this behalf is that the three accused persons were members of unlawful assembly duly armed with bhala, garasa and lathi with a common intention to watch the hole and not to allow anybody to repair it. The Assistant Sessions Judge has held that the prosecution has been able to show that the accused persons were members of an unlawful assembly being armed with deadly weapons and their common intention was to do mischief connected with the offence of unlawful rioting and this finding is in consonance with the charge framed against them where they have been said to be members of an unlawful assembly for committing mischief connected with the offence of rioting. 5. The accused persons pleaded not guilty to the witness was, however, examined on the behalf. 6. Mr. Ram Swaroop Sinha, representing the petitioners, has ??? 5. The accused persons pleaded not guilty to the witness was, however, examined on the behalf. 6. Mr. Ram Swaroop Sinha, representing the petitioners, has ??? the legality of their conviction by urging : (i) when they were acquitted on merit on the main offence of mischief under Sec. 430 of the Indian Penal Code, which was said to be their common object then their conviction under Sec.144 automatically goes away, (ii) for being punished under Sec.144 a person must be armed with any deadly weapon but no evidence has come that they were carrying any such weapon, (iii) in the evidence of Rajnath (P.W. 3) who has been examined as an eye witness it has been clearly admitted that these three accused were on the northern bank whereas other persons were on the southern bank and the width of the canal at that point was about 18 feet and as such they (accused) along with those others could not be said to bear any common object for committing the alleged offence but this important fact has been lost sight of in consideration of the evidence by both the courts, and (iv) there is no evidence that they (accused) had no authority to take canal water in that way to their fields on the relevant night which fell within the notorious draughty season of that year. In my Judgement, these contentions are not well founded. 7. The two charges under Ss.144 and 430 of the Indian Penal Code, as framed, were separate. There is nothing in the charges to show that the common object for the offence under Sec.144 was to commit mischief of cutting the canal to cause diminution of the supply of water to the lands concerned. On the other hand, the mischief alleged for the offence under Sec.144 was the commission of mischief connected with the offence of rioting. In such a situation, the mere fact that the accused have been held not guilty of the offence under Sec. 430, cannot entitle them to acquittal for the charge under Sec. 144 also. The question whether they were also to be held not guilty of the other charge was to be decided on the materials produced by the prosecution to prove it, and, as already observed, both the courts below, on the evidence furnished, have found it duly proved against the accused persons. The question whether they were also to be held not guilty of the other charge was to be decided on the materials produced by the prosecution to prove it, and, as already observed, both the courts below, on the evidence furnished, have found it duly proved against the accused persons. On the facts of this case the decision in Dodrai Mahton V/s. Emperor, AIR 1934 Pat 505 relied upon by the petitioners in support of this contention does not appear to apply. In that case the accused was charged under Sec. 430 for committing mischief by cutting a bund of river and causing diminution of the supply of water. They were further charged under Sections 143 and 144 for being members of the unlawful assembly, the common object of which was to commit mischief by cutting ??? When the Magistrate did not ??? then under Sec. 430 holding that there was no diminution in the supply of water it was held that the accused were entitled to acquittal even under Sections 143 and 144. This view appears to be based on the fact that for the charge under Sections 143 and 144 the common object alleged was the commission of the offence under Sec. 430, namely, committing mischief by cutting the bund. Here as shown above, the common object alleged for the charge under Sec.144 was not said to be the commission of the offence under Sec. 430. 8. On the next two contentions, the evidence adduced by the prosecution in the shape of the statement by witnesses is that when the prosecution party arrived at the place of occurrence they found some 15 to 20 persons armed with deadly weapons like garasa, bhala etc. standing there and among them these three petitioners were identified in the torch light flashed by Rajnath (P.W. 3). There is no evidence on the record specifically stating that these accused were unarmed and the above arms were in the hands of the other persons. According to P.W. 1 Hari Rai when they reached that place. Rainath flashed his torch and they noticed the presence of 20 to 25 persons variously armed there, of whom they identified these three accused. According to P.W. 3 Rajnath. According to P.W. 1 Hari Rai when they reached that place. Rainath flashed his torch and they noticed the presence of 20 to 25 persons variously armed there, of whom they identified these three accused. According to P.W. 3 Rajnath. after reaching that place they saw these three accused taking canal water through a big hole in the northern flank of the canal and he also noticed some 10 to 15 persons standing on the southern flank of the canal and they all were armed with lathi, bhalas and on their protest the accused persons became ready to quarrel with them. From his statement also it cannot be said that the arms with which the accused side was alleged to have been armed were in the hands of other persons and not these accused. Similar is that case with the evidence of the other witnesses on the point, namely, P.W. 4 (Ram Prasad Ram) and P.W. 7 (Nandoo Rai). As the consistent evidence of the P.Ws. on the point is that when they wanted to close the cut the members of the other side numbering 15 to 20 including these accused did not allow them to do it and became ready to fight. Even assuming for a moment that these three accused were not armed in that mob, but this by itself could not take them out of the trouble because on the evidence they must also be taken, as has been concurrently found by the two courts below, to share the common object with the other members of the mob who, on the evidence, have been proved, to be carrying deadly weapons like garasa, bhala etc. The criticism of non-consideration of the evidence by the courts below of Rajnath Rai (P.W. 3) does not appear to be correct. As the two judgements show, it has been duly considered by the Magistrate as well as the Assistant Sessions Judge along with other evidence on the record. The criticism of non-consideration of the evidence by the courts below of Rajnath Rai (P.W. 3) does not appear to be correct. As the two judgements show, it has been duly considered by the Magistrate as well as the Assistant Sessions Judge along with other evidence on the record. As I have already observed, even if the statement of Rajnath is taken that these accused were on one flank of the canal and the others were on the other flank of the canal, distance between the two flanks on that point being about 18 feet, that does not make them free from this guilt on the facts proved about it by evidence namely when the prosecution party wanted to close the cut they did not allow them to do so and they all threatened to fight with them. 9. As regards the fourth contention, it appears to have been raised for the first time in this revision. There was no such case of the defence that they were carrying water to their field through that cut in the canal bank. No such case seems to have been made out either in the cross-examination of the prosecution witnesses or in their examination under Sec.342 of the Code of Criminal Procedure. The argument of Mr. Sinha is that when the prosecution did not examine any one from the canal department to show that the water that these accused were carrying to their field from that canal was in any way unauthorised, it could not be said that they were doing so not on their own right. In that situation, according to counsel, that could not be treated as their unauthorised act so as to make the accuseds action preventing them (prosecution party) from closing that cut even if that had taken place, to be an unlawful act on their part to bring them within the mischief of Sec.144. As already observed, no such case was put up before the Magistrate at any stage. At the appellate stage also no attempt seems to have been made on their part to aver so. It is, therefore, too late for them to set up this plea for the first time in this revision. As already observed, no such case was put up before the Magistrate at any stage. At the appellate stage also no attempt seems to have been made on their part to aver so. It is, therefore, too late for them to set up this plea for the first time in this revision. Moreover, as it appears from the evidence, having failed to succeed in their attempt to close the cut in the canal the prosecution party went and filed a written complaint to the Canal Sub-divisional Officer (Ext. 11 which the latter in his forwarding note (Ext. 3) sent to the police station for information and necessary action and it was on that basis that the police instituted this case against the accused. In the face of this, non-examination of any canal witness cannot be said to make that cut authorised and their (accused) taking of water through it a rightful act. If that was so, there was no sense in the Canal Engineers forwarding that complaint to the police for necessary action. On these facts, this contention also appears to be without substance. 10. On the above findings no illegality can be read in their conviction under Sec.144 of the Indian Penal Code. On the point of sentence I am, however, prepared to take a lenient view, in the circumstances. The sentence, as shown above, is two months rigorous imprisonment on each of the accused. There is no such case that they had made any assault on the other side. All that has been said is that they did not allow them to close the cut and became ready to fight. It is not disputed that that was the year of unprecedented draught in the State which was so pronounced and widespread that it could be judicially noticed. It is also pointed out that these accused persons have already been in jail for some days in connection with this case at the time of filing this revision. This case has been going on since 1966 and this must have also put them to enough financial strain. On a consideration of all these facts. I reduce their sentence to that of fine of Rs. 75/- (seventy-five) each against them, in default to suffer one months rigorous imprisonment. Subject to this modification in sentence, the revision is dismissed.