JUDGMENT : V. Gopalaswamy, J. - This appeal is preferred against the judgment of the learned Sessions Judge, Balasore, convicting all the five Appellants u/s 148, I.P.C. and sentencing each of them to undergo rigorous imprisonment for six months and to pay a fine of Rs. 100/-, in default to undergo rigorous imprisonment for two weeks more, and further convicting Appellant Bhika u/s 304, Part I, I.P.C. and sentencing him to undergo rigorous imprisonment for four years, in Sessions Trial No. 8 of 1982. 2. The prosecution case briefly stated, is that an 21-1-1981 as the deceased Biswanath and his two sons Shankar and Makara were cutting bamboos from the bamboo clumps in Talamedhisasan, all the accused persons armed with deadly weapons came there and challenged the deceased as to why he was cutting the bamboos and immediately thereafter accused Bhika gave a Tangia blow an the head of the deceased, as a result of which the deceased fell down and thereafter accused Ramachandra gave a Katari blow an the back of the deceased and accused Bharat hit the deceased with a lathi and when the sans of the deceased raised an alarm accused Jagendra and Purusattam chased them when they ran away from the place. Subsequently the deceased was taken to Baisinga. Hospital and an the advice of the Medical Officer, Baisiriga, the deceased was taken to Balasore Hospital for better treatment, but by the time he had reached the Balasore Hospital he died. Shankar the son of the deceased, lodged the F.I.R. and on the basis of the F.I.R. the Police proceeded with the investigation of the case and submitted the charge-sheet against the accused persons. 3. In the Court of session all the accused persons were charged u/s 302 read with Section 149 and Section 148, I.P.C. Accused Jogendra and Purusottam were charged u/s 506, I.P.C. as well. After considering the evidence in the case, the learned Sessions Judge acquitted all the accused persons of the charge u/s 302/149, I.P.C. and acquitted accused Jogendra and Purusottam of the charge u/s 506, I.P.C. as well. He convicted all the accused persons of the charge u/s 148, I.P.C. and accused Bhika Jena u/s 304-Part II I.P.C. and sentenced them thereunder. After considering the evidence in the case, the learned Sessions Judge acquitted all the accused persons of the charge u/s 302/149, I.P.C. and acquitted accused Jogendra and Purusottam of the charge u/s 506, I.P.C. as well. He convicted all the accused persons of the charge u/s 148, I.P.C. and accused Bhika Jena u/s 304-Part II I.P.C. and sentenced them thereunder. So the scope of the present appeal is confined to a consideration of the evidence to find out if the prosecution could successfully prove the charge u/s 304-Part I. I.P.C. against Appellant Bhika and the charge u/s 148, I.P.C. against all the Appellants. 4. The plea of the defence is one of denial and no witness was examined on the 'side of the defence. 5. The prosecution has examined in all sixteen witnesses to prove its case. P.Ws. 1 and 2 are the sons of the deceased and, they were present with, the deceased at the time of the occurrence. P.W. 3 is the wife of the deceased and she stated in her chief-examination that she had not seen the assault on her husband nor can she say as to who assaulted him and how he was assaulted. P.W. 4 was having her land close to the spot of occurrence. P.Ws. 5. 6, 7 and 15 are the witnesses to certain seizures made during the course of the investigation. P.W. 8 is the Constable who identified the dead body of the deceased before the doctor who conducted the postmortem examination. P.W. 9 deposed that he has no knowledge about the occurrence. P.W. 10 K. Mohapatra conducted the postmortem examination 'over the deceased. P.W. 11 is the Medical Officer, Baisinga Hospital and he examined the deceased regarding the injuries on 21-1-1981. P.W. 12 was the O.I.C., Baisinga P.S. on 21-1-1981 and he reduced into writing the oral report made to him by the informant (P.W. 1) about the assault on his father and thereafter be sent the F.I.R. (Ext. 1) to Remuna P.S. as the place of occurrence was within that P.S. P.W. 13 was the S.I, Balasore Town P.S., who held the inquest over the dead body of the deceased on 21-1-1981. P.W. 14 was the OLC. of Remuna P.S. on 21-1-1981 and he is the I.O. who investigated into the case. P.W. 16 took over the charge of the investigation of the case on 7-7-1981. 6. P.W. 14 was the OLC. of Remuna P.S. on 21-1-1981 and he is the I.O. who investigated into the case. P.W. 16 took over the charge of the investigation of the case on 7-7-1981. 6. According to the prosecution evidence deceased Biswanath was assaulted on 21-1-1981. On 22-1-1981 P.W. 10 conducted the postmortem examination over the dead body of the deceased and found: (i) an indeed injury 41/2" x 1" X 1/2" on the midlineon the scapular area and, (ii) an incised injury over the right parietal eminence measuring 41/2" x 1" X bone deep extending from the profile eminence right side to the occipital bone, On dissection P.W. 10 found the following internal injuries: Linear fracture (tissue) of the right parietal bone and temporary bone: Posteriorly in the fracture, there is gaping of the part membrances lacerated, brain lacerated and through the gaping brainmatters protruded and haemorrhagic fluids and clots coming through. Temporal lobe and right side of the occipital lobe completely lacerated. The doctor opined that the death of the deceased was due to haemorrhage and shock on account of the injury in the head and the head injuries found by bill were sufficient to cause the death of the deceased in the ordinary course of nature. There is nothing in the evidence of P.W. 10 which creates any doubt regarding the correctness of his opinion, So relying on the evidence of P.W. 10 it can be safely held that the death of the deceased was homicidal in nature. 7. P.Ws. 1 and 2 are the only eye-witnesses to the occurrence. The evidence of P.Ws. 1 and 2 shows that on 21-1-1981 at about 11 a.m. as the deceased and his two sons to (P.Ws. 1 and 2) were cutting the bamboos from the bamboo clumps at Talamedhisasan all the five accused persons came there and questioned the deceased as to why he was cutting the bamboos and the deceased replied that he was cutting bamboos from their clump and then accused Bhika gave a blow on the head of the deceased with his Tangia. Nothing substantial was elicited in the cross- examination of P.Ws. 1 and 2 to discredit their testimony that accused Bhika had given a blow on the head of the deceased with a Tangia. So the evidence of P.Ws. Nothing substantial was elicited in the cross- examination of P.Ws. 1 and 2 to discredit their testimony that accused Bhika had given a blow on the head of the deceased with a Tangia. So the evidence of P.Ws. 1 and 2 can be safely relied on for coming to a finding that accused Bhika gave a blow with his Tangia on the head of the deceased causing the fatal head injury found by P.W. 10. 8. P.Ws. 1 and 2 are highly interested witnesses and so the teamed Sessions Judge carefully scrutinised their evidence. P.W. 1 categorically stated that accused Ramachandra had assaulted the deceased with the Katari M.O. II on his intra-scapular region. The two doctors P.Ws. 10 and 11 opined that the injury found on the intra-scapular region of the deceased was not possible with M.O. II. Relying on the medical evidence the learned Sessions Judge disbelieved the venion of P.Ws. 1 and 2 that by accused Ramachandra gave a Katari blow to the deceased. The learned Sessions Judge did not accept the version of P.Ws. 1 and 2 that accused Ramachandra and Bharat had also assaulted the deceased. On a careful consideration of their evidence I see no reason to differ with the view taken by the learned Sessions Judge that it was only accused Bhika who assaulted the deceased with a Tangia. So there is no reliable material to show that any of the other accused, besides accused Bhika, had also assaulted the deceased. 9. On a consideration of the evidence of P.Ws. 4 and 7, I agree with the finding of the learned Sessions Judge that it was accused Bhika who had grown the bamboos in the land where the occurrence had taken place. On a consideration of the prosecution evidence the learned Sessions Judge further found that accused Bhika really wanted to protect the bamboos grown by him. So according to the learned Sessions Judge accused Bhika had the right of private defence of property at the, time he assaulted the deceased. On a consideration, of the evidence placed on record the learned Sessions Judge held that when accused Bhika gave the fatal blow on the head of the deceased with the Tangia in the manner he did he exceeded his right of private defence and on that basis found the accused guilty of the offence u/s 304. On a consideration, of the evidence placed on record the learned Sessions Judge held that when accused Bhika gave the fatal blow on the head of the deceased with the Tangia in the manner he did he exceeded his right of private defence and on that basis found the accused guilty of the offence u/s 304. Part I. I.P.C. and I see no reason to differ with the said finding of the learned Session's Judge. 10. The trial Court relied on the evidence of P.W. 4 to show that all the Appellants constituted members of an unlawful assembly., P.W. 4 deposed that on the relevant day at 10 or 11 a.m. she saw P.W. 1 being chased by all the five accused persons. Even P.Ws. 1 and 2 do not corroborate the said version of P.W. 4. The evidence of P.W. 4 is falsified by: the evidence of P.Ws. 1 and 2 as neither of them stated that all the five accused persons chased P.W. 1. The highly interested testimony P.Ws. 1 and 2 that they were chased by accused Jogendra and Purusottam after their father was assaulted cannot be safely relied on as there is no independent corroboration of the same. Even otherwise also, admittedly P.Ws. 1 and 2 were engaged in unlawfully cutting the bamboos of accused' Bhika at the relevant time. So even if accused Jogendra and Purusottam has chased them as alleged they cannot be found to be guilty of committing any offence. 11. All the accused persons were convicted of the offence u/s 148. I.P.C. There is no reliable evidence to show that any of the other accused persons had also assaulted the deceased. But all the same all the five accused persons were convicted by the trial Court u/s 148. I.P.C. Their conviction u/s 148. I.P.C. would stand provided it is proved that all the accused persons' armed with deadly weapons together constituted an unlawful assembly and that in prosecution of the common object of that unlawful assembly force was used. In this case accused Ramachandra and Bharat are sons of accused Bhika and accused Jogendra is the nephew of Bhika and accused Purusottam is the brother-in-law of accused Jogendra. In this case accused Ramachandra and Bharat are sons of accused Bhika and accused Jogendra is the nephew of Bhika and accused Purusottam is the brother-in-law of accused Jogendra. As earlier stated the learned Sessions Judge found that accused Bhika had a right of private defence of property and that Bhika was there at the spot of occurrence and wanted to prevent the deceased from cutting and carrying away the bamboos grown by him. The other Appellants who were closely related to Bhika were with, him and were interested in preventing the deceased from unlawfully cutting and carrying away the bamboos in question. So as the object of the Appellants assembly was to exercise their right of private defence of property, it cannot be said that such an assembly is an unlawful assembly within the meaning of Section 141; I.P.C. In State of Bihar Vs. Nathu Pandey and Others the Supreme Court held that the assembly cannot be designated as an unlawful assembly if its object is to defend property by the use of force within' the limits prescribed by law. Section 141, I.P.C. must be read with Sections 96 to 106, I.P.C. dealing with the right of private defence. u/s 96 nothing is an offence which is done in the exercise of right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within expression to enforce any right or supposed right in the fourth clause of Section 141. Therefore, in the facts of the present case, the Appellants could not be convicted with the aid of Section 149, I.P.C. They would be individually liable for any excess committed by any of them in the exercise of his right of self-defence. Hence the conviction of the Appellants u/s 148, I.P.C: is not sustainable in law and therefore, the same is Hable to be set aside. 12. I have already held that none of the Appellants can be convicted u/s 148, I.P.C. But all the same, I wish to point out another, serious infirmity from which the trial Court judgment suffers, Section 148, I.P.C. Criminal Courts. 12. I have already held that none of the Appellants can be convicted u/s 148, I.P.C. But all the same, I wish to point out another, serious infirmity from which the trial Court judgment suffers, Section 148, I.P.C. Criminal Courts. On a perusal of paragraph II of the judgment of the trial Court it is seen that on the basis of the finding that at least one of the accused persons was holding a deadly weapon and another was holding a Katari at the time of the occurrence, the learned Sessions Judge found all the five accused persons guilty u/s 148. I.P.C. The offence u/s 148, I.P.C. is an aggravated form of the offence u/s 147, I.P.C. Section 147, I.P.C. deals with the punishment for the offence of rioting, whereas Section 148, I.P.C., deals with the punishment for the offence of rioting being aimed with deadly weapon. If one member of an unlawful assembly is armed with a deadly weapon, the other members cannot on that account be charged u/s 148, I.P.C., See Nanda Kishore Mohanty Vs. The State, and In Re: Muthusami Goundan and Others. A person cannot be found guilty u/s 148, I.P.C. unless be actually holds a dangerous weapon. Hence unless that condition is satisfied, he cannot be held constructively guilty u/s 148 by reason of Section 149. So the learned Sessions Judge acted illegally in convicting all the five accused persons u/s 148, I.P.C. merely on the finding that two out of the accused persons were armed with deadly weapons. 13. In view of my above discussion, I find that all the Appellants are entitled to an acquittal of the offence u/s 148, I.P.C. So far as the Appellant Bhika is concerned, I agree with the finding of the trial Court that he is guilty under' Section 304. Part I.P.C. On a perusal of the judgment it is seen that accused Bhika was aged about 56 years in the year 1982 and so presently he would be aged about 63 years. In view of his old age, I think sentencing him to three years' rigorous imprisonment for the offence u/s 304, Part-I, I.P.C. would sufficiently meet the ends of justice in view of the peculiar facts and circumstances of the present case while convicting all the Appellants u/s for the future guidance of the subordinate. 14. In view of his old age, I think sentencing him to three years' rigorous imprisonment for the offence u/s 304, Part-I, I.P.C. would sufficiently meet the ends of justice in view of the peculiar facts and circumstances of the present case while convicting all the Appellants u/s for the future guidance of the subordinate. 14. In the result, the order of convocational sentence passed by the trial Court against the accused-Appellants u/s 148, I.P.C. is hereby set aside and accordingly the appeal preferred on behalf of Appellants Ramachandra Jena, Bharat Jena alias Puntia, Jogendra Jena and Purusottam Jena is allowed. So far as Appellant Bhika Jena is concerned, while his conviction u/s 304, Part-1, I.P.C. is hereby confirmed, he is sentenced thereunder to undergo rigorous imprisonment for a period of three years and with the said reduction in the sentence the appeal preferred on his behalf is dismissed. Appeal allowed in part. Final Result : Allowed