J. G. CHITRE, J. ( 1 ) THE petitioners are hereby assailing the charge which has been levelled against them by learned lind Additional Sessions Judge, Shajapur in the matter of Sessions Trial No. 338 of 1993 by which they have been charged for committing offence punishable under Section 313 read with Section 147 of Indian Penal Code. ( 2 ) THE prosecution alleged that in the evening of 19. 8. 1993 at about 6 p. m. petitioners formed unlawful assembly for the purpose of committing offence of rioting and assaulting P. W. Ganpat and as such had visited his house being armed with sticks along with co-accused Bhanwarlal s/c Gangaram who was possessing a country-made pistol. The prosecution further alleged that the petitioners called P. W. Lalu out of his house but as Lalu was restrained by his family members from going out, P. W. Ganpat came out of the house and he was slapped by the petitioners. It is also the prosecution allegation that thereafter the petitioners left the spot and thereafter coaccused Bhanwarlal fired country-made pistol and caused injury to P. W. Bahadur Singh on his right thigh. ( 3 ) SHRI Piyush Mathur, counsel for the petitioners argued that though it is the Case of prosecution that present petitioners slapped P. W. Ganpat, P. W. Ganpat has not stated in his statement recorded during investigation that present petitioners slapped him. He further argued that the prosecution case itself shows that petitioners did not do any overt act which was suggestive of their becoming members of unlawful assembly which was formed for the purpose of committing any clime in context with P. W. Ganpat or P. W. Bahadur Singh and, therefore, petitioners could not have been charged for offence punishable under Section 323 read with 147 IPC. He submitted that the charge framed against the petitioners needs to be set aside and they need to be discharged. ( 4 ) SHRI Girish Desai, Govt. Advocate carefully examined the papers of investigation. He was unable to find out any material from the papers of investigation to show that the petitioners slapped P W. Ganpat. He submitted that the charge framed against the petitioners needs to be set aside and they need to be discharged. ( 4 ) SHRI Girish Desai, Govt. Advocate carefully examined the papers of investigation. He was unable to find out any material from the papers of investigation to show that the petitioners slapped P W. Ganpat. He, however, pointed out that P. W Bahadur Singh has stated that petitioners had slapped ( 5 ) SECTION 141 of Indian panel Code provides that if an assembly of five or more person is formed with the common object of the persons composing that assembly to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any pubic servant in the exercise of the lawful power of such public servant; or to resist execution of any law, or of any legal process; or to commit any mischief or criminal trespass, or other offence or 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 he is in possession or enjoyment, or to enforce any right or supposed right or by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to commit to do what he is legally entitled to do. The Esplanation to Section 141 shows that the assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. ( 6 ) SECTION 142 speaks that whoever, being aware of facts which render. any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Section 144 provides that whoever, being armed with deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 144 provides that whoever, being armed with deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 146 provides that whenever force of violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting and Section 147 provides punishment for rioting. ( 7 ) IN this context Section 350 IPC will have to be referred to which gives the definition of criminal force. It indicates that whoever intentionally uses force to any person, without that person's consent, in order to committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. ( 8 ) SECTION 351 IPC speaks of assault. It provides that whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation to Section 351 provides that mere words do not amount to an assault. But the words which a person uses may give to his gesture or preparation such a meaning as may make those gestures or preparations amount to an assault. ( 9 ) THEREFORE, what at the most prosecution wants to canvass is that all these petitioners had gone together to the house of Bahadursingh along with co-accused Bhanwarlal and at that time all the petitioners were armed with sticks. Thereby prosecution wants to indicate that all the petitioners had gone to the house of Bahadursingh for the purpose of assaulting him or for the purpose of giving him criminal intimidation. Further, it is also attempt of prosecution to show that at that time co-accused Bhanwarlal was armed with country-made pistol. Thereby prosecution wants to indicate that all the petitioners had gone to the house of Bahadursingh for the purpose of assaulting him or for the purpose of giving him criminal intimidation. Further, it is also attempt of prosecution to show that at that time co-accused Bhanwarlal was armed with country-made pistol. It is important to note at this juncture that as per prosecution case the petitioners called Lalu to come out of the house. It is again important to note here that prosecution case does not show that the petitioners gave him an alarm or there is nothing in the prosecution case to show that the petitioners called P. W. Lalu to come out of the house for the purpose of assaulting him or for the purpose of enabling them to commit a crime in context with him. ( 10 ) IT is the allegation of P. W. Bahadursingh that petitioners had slapped P. W. Ganpat but papers of investigation reveal that it is not the say of Ganpat at all that he was slapped by the petitioners. Therefore, allegation made by P. W. Bahadursingh in this context is contradicted by the person who as per statement of P. W. Bahadursingh was slapped by the petitioners. This discrepancy has its own value for the purpose of enabling the Court to come to a conclusion whether prosecution has made out a case for framing the charge against the petitioners. ( 11 ) IT is pertinent to note that the prosecution has indicated that the petitioners are agriculturists. While giving their names and addresses prosecution has mentioned that agriculture is occupation of the petitioners. Therefore, possessing sticks cannot be called by itself an act suggestive of intention of the petitioners to assault either P. W. Ganpat or P. W. Lalu. Had there been such intention, the petitioners would have not stopped only by calling P. W. Lalu out of his house but would have stated further more that Lalu should come out of the house because the petitioners wanted to assault him or teach him a lesson. Atleast, they would have uttered some sentences indicating their intention of assaulting P. W. Lalu or expressing their intention to commit any crime in this context or would have made gestures that way. Atleast, they would have uttered some sentences indicating their intention of assaulting P. W. Lalu or expressing their intention to commit any crime in this context or would have made gestures that way. But prosecution case does not show that petitioners uttered any sentence suggestive of their intention of committing any crime in context with P. W. Lalu. What at the most prosecution easy shows that they called P. W. Lalu out of his house. Unless there is something contrary, the petitioners may be having an intention of gettting explanation from Lalu about their misunderstanding about him. They may have been present there for the purpose of making some interrogation from P. W. Lalu for the purpose of satisfying themselves about some question in dispute. The prosecution case is very much silent about this aspect. Therefore, calling P. W. Lalu out of his house by itself will not be suggestive of any intention on the part of petitioners to commit a crime. ( 12 ) AS per Sections 141 and 142 IPC, five or more persons would form an unlawful assembly if they assemble with a common object of committing mischief, criminal trespass or any other offence in the circumstances expressed by provisions of Section 141. In the present case the prosecution does not show that they had gone there with the intention of committing mischief or criminal trespass because, had there been such intention lingering in the minds of the petitioners, they would not have stopped by only calling P. W. Lalu out of his house but would have done something more for the purpose of expressing their intention of committing mischief or criminal trespass. They would not have returned back, as the prosecution case indicates. Prosecution case also does not show that petitioners wanted to use criminal force against P. W. Lalu. The theory of using criminal force against P. W. Ganpat by slapping has been falsified by Ganpat himself. Prosecution case does not show that petitioners had gone there for obtaining possession of any property or to deprive any person of he enjoyment of right of way or use of water or other incorporeal right of which such a person was in possession or enjoyment. Prosecution case also does not show that petitioners had gone there to enforce any right or supposed right. Prosecution case also does not show that petitioners had gone there to enforce any right or supposed right. ( 13 ) IT is pertinent to note here that generally the villagers are moving with sticks for the purpose of self-protection or for the purpose of doing agricultural activities. Possession of a stick by an agriculturist by itself will not be suggestive of he being armed with weapon. Stick does not mean in all cases weapon. It becomes weapon only when it is used as a weapon or possessed for the purpose of either using criminal force against other or for the purpose of assault. If carried innocently, stick is not weapon. The nature of such instrument has to be gathered by assessing the surrounding circumstances or the intention with which it has been so possessed. ( 14 ) IN the present matter the prosecution case itself shows that after the petitioners left the spot near the house of P. W. Lalu, co-accused Bhanwarlal fired a shot from country-made pistol which he was possessing. Prosecution case does not show that he was carrying the said country-made pistol visible to petitioners or in the knowledge of the petitioners. Further more, unless the prosecution shows it in positive way, it cannot be inferred that petitioners were knowing that co-accused Bhanwarlal would use that pistol for the purpose of causing injuries to some other. ( 15 ) IT is settled law that charge can be framed against an accused only if the prosecution brings such material on record which if unrebutted would warrant a conviction. Prosecution has to bring such material before the Court which would make the Court to believe that a prima facie case has been made out against the accused for which the accused should face a trial. If it is not so, such accused will have to be discharged. ( 16 ) THUS, I uphold the argument which has been advanced on behalf of petitioners and hereby set aside the charge which has been leveled against petitioners in Sessions Trial No. 338 of 1993 by and Additional Sessions Judge, Shajapur on 28/2/1994 for offences punishable under Sections 323 read with Section 147 IPC. They are entitled to be discharged and they are hereby discharged. They are entitled to be discharged and they are hereby discharged. ( 17 ) THIS order does not relate to prosecution which co-accused Bhanwarlal is likely to face or is expected to face because the act which has been attributed to him is quite different and that also relates to an offence which has been indicated by Indian Arms Act. It is also made clear that this order does not relate to the charge which pas been levelled against co-accused Bhanwarlal as no relief has been sought in this petition in respect of Bhanwarlal. ( 18 ) THUS the revision petition is hereby allowed. Petitioners are discharged from the charge which has been levelled against them for offence punishable under Section 323 read with 147 IPC. The record of the case be sent back to the trial Court immediately for the purpose of avoiding the possibility of obstruction so far as the trial of co-accused Bhanwarlal is concerned. Revision allowed. .