JUDGMENT Deoki Nandan, J. 1. THERE are six appellants in this case. All of them have been convicted under Section 307 read with Sec. 149 IPC for having assaulted Janki. Chandrapal and Liladhar appellants have further been convicted under Section 148 I. P. C. for being armed with spears. Gajram, Makhan, Bhawani and Naikoo, appellants were further convicted under Section 147 IPC. The sentence awarded by the learned Sessions Judge was seven years' R.I. for the convicting under Sec. 307/149 IPC to each of the six appellants, three years' rigorous imprisonment to Chandra Pal and Liladhar appellants for the offence under Section 148 IPC and one year's rigorous imprisonment to Gajram, Makhan, Bhawani and Naikoo each for the offence under Section 147 IPC. All the sentences have been ordered to run concurrently. 2. THE prosecution case as unfolded in the first information report lodged by Sukkhi was that he had a field having an area of 3-1/2 bighas at ganda nala of the village. He had sown lahi. On the date of occurrence, viz. January 13, 19/0 at about 8-9 A. M. Gajram, appellants, was reaping the harvest of lahi. The complainant, Sukhi, asked him to desist from doing so saying that he (the complainant) had won the case with regard to the land and even then why was he (Gajram, appellant) reaping the harvest, whereupon he (Sukhi, the complinant) was abused and Makhan, Chandrapal and Gajram started beating him with spears and lathis. On his raising alarm Bhawani, Liladhar and Naikoo came with lathis for the help of the appellants while the complainant's wife, Janki, son Ramesh and cousin brother Chiranji came for defending the complainant. On this all the appellants beat him (the complainant) and his family members with lathis and spears. His wife and son were unconscious and he had brought them on a bullcok cart even in that unconscious stage. He lodged the first information report. His cousin brother Chiranji was at home. The first information report proceeds to state that the complainant's men had also wielded lathis which caused injuries to Gajram and Makhan. The complainant's wife and son and cousion brother Chairanji had a number of injuries on their persons. The occurrence was seen by Bhawani Dhimar and Om Prakash etc. The appellants were all Ahirs and influential persons. The first information report proceeds to state that the complainant's men had also wielded lathis which caused injuries to Gajram and Makhan. The complainant's wife and son and cousion brother Chairanji had a number of injuries on their persons. The occurrence was seen by Bhawani Dhimar and Om Prakash etc. The appellants were all Ahirs and influential persons. The police registered a case under Sections 147/148/323/324 and 308 IPC and took certain clothes of the injured into custody. The injured were examined by Dr. D. S. Shukla, Medical Officer in Charge at Chandausi on the same day. He found eight injuries on the person of Ramesh and one contused wound 3" X 1/4" X scalp deep on the left side head 3" above right ear on the person of Janki, wife of Sukhi. This injury was bleeding at that time. The doctor also found fifteen injuries on the person of Sukhi and seven injuries on the person of Chiranji. There is a supplementary medical report in the case of Sukkhi according to which three fractures were discovered on the result of X-Ray, of which the third injury was grievous. After the necessary investigation by the police and inquiry proceedings by the learned Magistrate, all the appellants were charged under Sections 147, 307 read with Section 149 IPO of the appellants Chandra Pal and Liladhar were additionally charged under Section 148 IPC. 3. IN his examination by the Magistrate, while denying the facts, Gajram stated that the land belonged to panchayat which he had sown and there was an affray thereon. The appellant Makhan added that the cause of the INstitution of the prosecution was the cultivation of panchayat land. Chandra Pal appellant gave the cause of institution of the prosecution as enmity and panchayat land. Bhawani ' appellant also added that the cause of the institution of the prosecution was the panchayat land. But he further added that the panchayat land was first sown by Gajram appellant and then sown by Sukhi, complainant and this dispute between the two was going on for two years. The lahi was ripe. It was due to be harvested in the month of Paush. Sukhi decided to reap it. Gajram sent Makhan and Chandrapal. At that time Sukhi's son was there. On one side Sukhi and his son started harvesting lahi and on the other side Makhan and Chandra Pal started harvesting the lahi. The lahi was ripe. It was due to be harvested in the month of Paush. Sukhi decided to reap it. Gajram sent Makhan and Chandrapal. At that time Sukhi's son was there. On one side Sukhi and his son started harvesting lahi and on the other side Makhan and Chandra Pal started harvesting the lahi. Then they went to the village for a decision. In the meanwhile the lahi was being harvested. Then Gajram reached ganda nala. 10-30 persons followed him. Chiranji caught hold of him and Sukhi and Ramesh started weilding their lathis. Chandra Pal and Makhan got excited and came running and beat Sukhi and Ramesh and the rest kept watching. He (Bhawani appellant) also kept watching. 4. THERE was a cross case too which had arisen from a first information report lodged by Gajram earlier that today i. e. 13th January, 1972. The injuries on the persons of Gajram and Makhan were also examined by Dr. D. S. Shukla. He found six injuries on the person of Gajram and five injuries on the person of Makhan. An extract of khatauni for the years 1378 Fasli to 1380 Fasli in respect of plot of land in dispute was also filed. It is Ex. Ka-22. A copy of the decree of the Revenue Court dated 30th December, 1969 relating to the plot of land in dispute was also brought on record. It is Ex. Ka-14. It declares Sukhi, the complainant in the present case, to be the sirdar in possession of the plot of land in dispute. 5. THE learned counsel for the. appellants did not under the circumstances, dispute the occurrence and the presence of Gajram and Makhan at the time and place where the fighting took place. The theory of private defence put forward by the appellants stands prima facie negatived by the decree of the Revenue Court. It was suggested that Gajram or Makhan or the other appellants were not parties to that case. The theory of private defence put forward by the appellants stands prima facie negatived by the decree of the Revenue Court. It was suggested that Gajram or Makhan or the other appellants were not parties to that case. It may be that the decree in that proceeding is not binding on them but if it were their case that the decree had been obtained by collusion between Sukhi, the complainant on the one hand and the Oram Samaj and the State of Uttar Pradesh on the other, or by fraud it was their duty to have the decree cancelled before taking it upon themselves to try to defend their alleged possession over the plot of land in dispute which had been declared to be in possession of Sukhi, the complainant, by a court of competent jurisdiction. I, therefore, agree with the findings of the learned Sessions Judge on this point. 6. NOW with regard to the actual occurrence the prosecution examined the complainant Sukhi (PW 1) and Bhawani (PW 2) as eye witnesses. Sukhi stated that he was resident of village Kaithal and all the appellants were also residents of the village. He knew them :all. Gajram was the son-in-law of Har Sukh and is living with his father- in-law for the last 15-20 years. Ishwar is the brother-in-law of Gajram being the husband of his wife's sister. He was also living for the last 40 years at Ibis father-in-law's place. Makhan and Chandrapal were the sons of Ishwari. The remaining three accused appellants Bhawani, Naikoo and Liladhar belong to the same caste as the other accused appellants. They ware all Ahirs and were related to each other. He was Dhimar by caste. Ahirs are many in numbers and were powerful and influential in the village. There was ganda nala flowing from Chandausi towards village. He had a field having an area of 3 1/2 bighas near that ganda nala which sloped towards the same. He was cultivating the land for the last 25-26 years. Earlier it was a banjar land. He took the land and brought it under cultivation. The Oram Samaj or the Gaon Sabha had no connection with the field. The accused appellants Gajram, Chandrapal and Makhan wanted to forcibly occupy the field. They got a notice served on him through Ram Rattan Pradhan who belonged to the party of the accused appellants. He took the land and brought it under cultivation. The Oram Samaj or the Gaon Sabha had no connection with the field. The accused appellants Gajram, Chandrapal and Makhan wanted to forcibly occupy the field. They got a notice served on him through Ram Rattan Pradhan who belonged to the party of the accused appellants. On receiving the notice he filed the suit which was decreed a few days before the occurrence. The accused appellants did not like it and forcily harvested the lahi crop in the field, it was between 8-30 and 9 a. m. when the occurrence took place. He had gone to the field. He saw Gajram, Makhan and Chandrapal reaping the lahi of his field. He asked them to desist but they did not: stop and started beating. Gajram and Makhan had lathis with them. Chandrapal had ballam. They beat him with lathis and ballam. He raised an alarm, Thereupon the accused appellants; Liladhar, Naikoo and Bhawan, the remaining three appellants, came to the help of the said accused appellants. Bhawani and Naikoo had lathis and Liladhar had a ballam. He was helped by his wife Janki and son Ramesh and brother's son Chiranjee who arrived at the scene and tried to save him. His wife fell towards the nala on receiving injuries and became unconscious. He and his people also wielded lathis in self defence. The occurrence was witnessed by others, namely, Om Prakash and Bhawani Dhimar who saved them. The accused appellants left the place after beating. His son Om Prakash and son-in-law Hardwari arranged for a bullock cart. He, his son Ramesh and his wife Janki went to police station Chandausi on the bullock cart and lodged the first information report. They were thereafter medically examined at Chandausi Hospital and treated there. He, his son Ramesh and his wife Janki remained in the hospital for 24 days. His injuries and those of his wife were X-rayed. The bones of the fingers of his hand had been fractured. Before sending them to the hospital the Head Constable had taken their blood stained clothes in his custody. Bhawani (PW 2) stated that it was between 8-9 a. m. he was at his house. He heard Sukhi's cry from the side of the nala. Sukkhi was shouting "Chaliyo Bhaiya Mujhe Mar Dala". He rushed from house and reached the crossing of the street and the road. Bhawani (PW 2) stated that it was between 8-9 a. m. he was at his house. He heard Sukhi's cry from the side of the nala. Sukkhi was shouting "Chaliyo Bhaiya Mujhe Mar Dala". He rushed from house and reached the crossing of the street and the road. From there he could see the disputed field of Sukhi. He saw that the appellants Gajram, Makhan and Chandrapal, Bhawani and Liladhar were beating Sukhi. During the marpit Chiranji, Ramesh and Sukhi's wife Janki came running from the side of the village to the scene of occurrence. They passed before him. He also proceeded ahead with Chiranji, Janki and Ramesh who were going with folded hands and said to the appellants not to beat them whereupon all the five appellants started beating Chiranji, Ramesh and Janki also. Sukhi and Chiranji wielded lathis in self defence. He saw the marpit from a distance of 20-25 paces. When the marpit was going on Sukhi's other son Om Prakash and Sukhi's son-in-law Hardwari also reached the place of occurrence. After the marpit the appellants went to their mohalla in the village. The field in dispute has been in Sukhi's possession for the last 20-25 years. Lahi crop about which the dispute arose, had been sown by Sukhi. The witness also added that his brother Khushali was an accused in a case under Section 307 IPC in which Pyare was a witness against Khushali and that Pyare was the cousin brother of Naikoo accused- appellant. Both belonged to the same family. The learned Sessions Judge had believed the evidence of the eye witnesses and explained the fact that Bhawani (PW 2) did not name Naikoo by saying that it was because of the case against his brother Khushali in which Pyare, the cousin of Naikoo was a prosecution witness. The learned counsel for the appellants tried to make a point out of the fact that Sukhi stated in his cross- examination that Bhawani Dhimar (PW 2) and Chiranji were not present at the field at the time of occurrence and that Bhawani reached late at the time of occurrence and further that Bhawani reached after the dispute was over. That may be so, but Bhawani himself did not in his examination in chief say that he was present at the very scene of occurrence when the marpit was going on. That may be so, but Bhawani himself did not in his examination in chief say that he was present at the very scene of occurrence when the marpit was going on. He stated that he saw the marpit from the distance of about 20-25 paces. Having read the statements of these two witnesses PWs 1 and 2, I cannot say that the learned Sessions Judge was wrong on relying their testimony. Nevertheless, I must observe that the approach of the learned Sessions Judge to the evidence on the record was not right in law when he observed at the out set that 'the only issue that arises for consideration is as to which of the two versions namely, the prosecution case or the defence version, is correct and more probable. 7. THE learned Sessions Judge has disbelieved the defence version of the appellants. The only defence witness examined by the defence was Hamid, DW 1. He only stated that his field was situated to the east of the nala. Gajram and other accused belonged to' his village. The lahi crop in dispute had been sown by Gajram. The land in dispute was in Gajram's possession for 5 years before the incident and that Sukhi was never in possession over the land. This evidence could be of no avail and is wholly inadequate to prove the version of the defence in the face of the decree of the Revenue Court declaring Sukhi to be the sirdar in possession of the plots of land In question. The result is that it must be found that the marpit did take place and the complainant and his family members did receive grievous injuries at the hands of the appellants. The question which, however, remains is one which has not been considered by the learned Sessions Judge in a proper manner. The question is as to which of the accused appellants inflicted injuries and with what intention. The learned Sessions Judge has contended himself by saying that as soon as the accused Bhawani, Nalkoo and Liladhar joined the accused appellant Gajram, Makhan and Chandrapal, their assembly became an unlawful assembly and the common object of that assembly was to assault Sukhi and others who came for his help. The appellants were six in number. They were armed with lathi and spears and they committed violence and thereby committed an offence punishable under Section 147,148 IPC. The appellants were six in number. They were armed with lathi and spears and they committed violence and thereby committed an offence punishable under Section 147,148 IPC. The accused Chandrapal and Liladhar were armed with spears and rest of them were armed with lathis. The appellants Chandrapal and Llladhar were guilty under Section 148 IPC The rest of the appellants were guilty of the offence under Section 147 IPC. All the six appellants were further found guilty under Sections 307/149 IPC' the reason is given by the learned Sessions Judge in the operative part of his order and it is that they assaulted Janki (illegible) hand and her general condition was poor one witness has said that she was unconscious and brought to the police station and that she could die of her head injury" 8. SUKHI, PW 1 did not say that Bhawani, Naikoo and Liladhar shared the common intention of Gajram, Makhan and Chandrapal who had assembled on his field for doing so. He only said that on his shouts Liladhar, Naikoo and Bhawani came to the help of Gajram, Makhan and Chandrapal. He did not ascribe any part in the beating to these three appellants namely Liladhar, Bhawani and Naikoo immediately when they arrived. Although what he said was that after his wife Janki, his son Ramesh and cousin Chiranji had arrived at the scene and tried to defend him, all the six accused appellants started beating them with their weapons. He further admitted that he, his son Ramesh and cousin Chiranji had also wielded lathis. It is apparent from the evidence of SUKHI that the intention of the three remaining accused in this case, namely, Gajiram, Makhan and Chandra pal was wrongly to reap the lahi crop from his field and it was for achieving that object that Gajram, Makhan had lathis with them and Chandrapal had a ballans. The exact size of the ballam or the potentiality of danger by wielding it on a human being has not been brought out in the evidence on the record for it is not known whether it was just a lathi with an iron spike or something mors dangerous. It is not clear whether it could be said to be an instrument of stabbing, which used as a weapon of offence, was likely to cause death. It is not clear whether it could be said to be an instrument of stabbing, which used as a weapon of offence, was likely to cause death. There is nothing on the record to indicate that any of the accused appellant intended to murder SUKHI or any of his family members wielded their weapons with the necessary knowledge, such as; to hold them guilty of having attempted to commit the murder of Janki, the wife of SUKHI, punishable under Section 307 IPO. At any rate, even if any such intention or knowledge could have been ascribed to any one of the six accused appellants, Janki would have been the: last person whom they could have intended to murder. I am, therefore, of the opinion that the accused appellants were wrongly convicted of the offence under Section 307 IPC read with Section 149 IPG. The charge under Section 148 IPC against Chandrapal and Liladhar must also fail, because, as observed above, I am not satisfied on the material on the record that the weapons, namely, the ballams, which they are alleged to have taken with them were such as were likely to cause death if used as a weapon of offence. With regard to the offence under Section 147 IPC the case as stated by SUKHI was that to begin only Gajram, Makhan and Chandrapal were at the field and their common object was to reap the crop of lahi sown by him and thus to dispossess him by force. The learned Sessions Judge has observed that no sooner the accused Bhawani, Naikoo and Liladhar joined them, the assembly became unlawful. Obviously, the learned Sessions Judge was relying on the Explanation to Section 141 IPC. But the Explanation does not say that as soon as an assembly of less than five persons is joined by more persons so as to make them number five becomes an unlawful assembly. What it says that an assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly. In order that a person may be held to be a member of an unlawful assembly, it is necessary to find out whether that the person, being aware of the facts which render the assembly unlawful, intentionally joins that assembly or continues in it, obviously with that intention. In order that a person may be held to be a member of an unlawful assembly, it is necessary to find out whether that the person, being aware of the facts which render the assembly unlawful, intentionally joins that assembly or continues in it, obviously with that intention. Now intention with which the three appellants, i.e. Liladhar, Naikoo and Bhawani are said to have joined Gajram, Makhan and Chandrapal was not to reap lahi of SUKHI after dispossessing him from his field by force but merely to help Gajram, Makhan and Chandrapal. It is not at all clear and it cannot be inferred without anything more on the record that Liladhar, Naikoo or Bhawani were aware of the intention or the object of Gajram, Makhan and Chandrapal. It was stated by SUKHI that Liladhar, Naikoo and Bhawani reached the field for the help of Gajram, Makhan and Chandrapal after he (SUKHI) had raised an alarm. May be Liladhar, Naikoo and Bhawani were friends of Gajram, Makhan and Chandrapal and may be that they rushed to the field and broke the law on hearing the alarm raised by SUKHI, I am, therefore, not satisfied that there is sufficient material on the record to justify the finding that the assembly of Gajram, Makhan and Chandrapal became an unlawful assembly when Liladhar, Naikoo and Bhawani joined them or that the latter three were members of an unlawful assembly. The result is that the charge under Section 147 IPG against the appellant must also fail. The question, however, still remains as to what offence was committed by the appellants and by which one of them, in the commission of the wrongful acts. Talcing an over all view of the material on the record I am not convinced beyond any shadow of doubt of the guilt of the appellants Bhawani, Naikoo and Liladhar who admittedly came to the scene of occurrence lateron. The benefit of doubt must be given to them. Regarding Gajrara, Makhan and Chandrapal I am satisfied that they did participate in the beating of Sukhi, his wife Janki, his son Ramesh and cousin brother Chiranji. According to Dr. D. S. Shukla (PW 4) three of the injuries on the persons of Sukhi, vide Ex. Ka-10, were grievous. All the other injuries were simple. It is, however, not at all clear as to who caused the three injuries on the person of Sukhi. According to Dr. D. S. Shukla (PW 4) three of the injuries on the persons of Sukhi, vide Ex. Ka-10, were grievous. All the other injuries were simple. It is, however, not at all clear as to who caused the three injuries on the person of Sukhi. When beating a person with a lathi and ballam and doing so deliberately, the intention of causing hurt can be ascribed to a person who does the beating, or at any rate, the knowledge that such beating is likely to cause grievous injury can certainly be ascribed to that person. The intention of all the three Gajrara, Makhan and Chandrapal was common. They went to the field armed with lathis and spear to reap the harvest of lahi. The injury reports of Ramesh, Janki, Sukhi and Chiranji shows that the injuries were not such as could be said to be likely to cause the death of either, or to have been inflicted by a dangerous weapon in such a manner as was likely to cause death. Under the circumstances, I am satisfied that with the aid of Section 34 IPC each one of the three i.e. Gajrara, Makhan and Chandrapal were guilty of having committed the offence of voluntarily causing simple and grievous hurts to Sukhi, his wife Janki, his son Ramesh and his cousin Chiranji, punishable under Sections 323 and 325 IPC. 9. HAVING heard the learned counsel for the appellants I am satisfied that the sentence of one year's rigorous imprisonment for the offence under Section 323 IPC along with a fine of Rs. 250/- payable by each one of the three appellants Gajram, Makhan and Chandrapal will meet the ends of justice. I further order that out of tie fine so recovered the sum of Rs. 500/- should be payable as compensation to Sukhi. 10. THE appeal of Bhawani, Naikoo and Liladhar appellants is allowed. Theiir conviction under Sections 307/149, 148 and 147 IPC and sentences therefor are set aside and they are acquitted of the charges levelled against them. They are on bail. Their bail bonds are discharged. They need not surrender. The appeal of Gajram, Makhan and Chandrapal is allowed in part. Their conviction under Sections 307/149, 148 and 147 IPC and sentences thereunder are set aside. They are on bail. Their bail bonds are discharged. They need not surrender. The appeal of Gajram, Makhan and Chandrapal is allowed in part. Their conviction under Sections 307/149, 148 and 147 IPC and sentences thereunder are set aside. However, each one of them is convicted under Sections 323 and 325 IPC and is sentenced to undergo rigorous imprisonment for six months and a fine of Rs. 250/- on the first count, and rigorous imprisonment for one year on the second count. Both the sentences shall run concurrently. The sum of Rs. 500/- shall be payable to the complainant Sukhi from the fine when realised, as compensation for the injuries caused to him and the members of his family. In default of payment of fine they shall be liable to undergo six months simple imprisonment. They are on bail. Their bail bonds are cancelled. They shall surrender forthwith to serve out the sentences awarded to them. Ordered accordingly.