Judgment Abhijit Sinha, J. 1. The 16 appellants have preferred this appeal being aggrieved by the Judgment and order dated 17.3.93 passed by Sri Someshwar Nath Pathak, the then 8th Additional Sessions Judge, Gaya in Sessions Trial No. 94/115 of 1988/1990 arising out of Chandauti P. S. Case No.2 of 1986 whereby and whereunder appellants Kailash Yadav, Laldhari Chaudhary and Ram Swaroop Chaudhary have been convicted under sec. 148 of the Indian Penal Code and each of them have been sentenced to undergo rigorous imprisonment for six months, all the rest of the accused have been convicted under sec. 147 of I.P.C. and each of them have been sentenced to undergo rigorous imprisonment for six months, accused Kailash Yadav has further been convicted under sec. 448 of I.P.C. and sentenced to undergo rigorous imprisonment for one year and appellant Ram Bilash Yadav has been convicted under sec. 436 of I.P.C. and sentenced to undergo rigorous imprisonment for five years. All sentences were directed to run concurrently. 2. The prosecution case is based on the fard beyan (Ext.3) given by one Bankey Mian at about 3 P.M. on 15.1.1986 impleading 18 named persons and 10 unknown others. According to the informant on 15.1.1986 he had, as usual, gone out for work at Karimganj and when he could not secure any work he returned to his village at around 9.30 A.M. and found that the residents of Harijan Tola and Yadav Toll were engaged in a heated controversy and they had almost reached to the level of quarrelling. The reason for the quarrel allegedly related to the stacking of husk at the Kabristan and the Mohammedans and Harijans stood opposed to each other and there was high-pitched exchange of abuse from both sides. Looking at the situation the informant claims to have hid himself inside his own house and he soon heard a loud hue and cry outside his house. He saw Durga Rajak armed with lathi and Kailash Yadav armed with garansa entering into his house through the open door and Durga allegedly gave one lathi blow on the head of the informant and he tried to ward off the same the informant and he tried to ward off the same the informant sustained injury on his hand. He saw Durga Rajak armed with lathi and Kailash Yadav armed with garansa entering into his house through the open door and Durga allegedly gave one lathi blow on the head of the informant and he tried to ward off the same the informant and he tried to ward off the same the informant sustained injury on his hand. It is said that when the informant entreated the accused to let him off Kailash Yadav ordered his associates to drag out the informant which was effectively carried out. On being dragged out of the house the informant saw Laldhari Chaudhary and Ram Swaroop Chaudhary armed with garansa and Ram Bilash Yadav armed with lathi standing under a tree of berries. These persons are alleged to have told the informant to flee or else he alongwith his house would be set on fire. The informant further said that as he began to flee towards the east of his village he saw Ram Bilash Yadav set fire to his thatched hut and he also heard the sound of explosion of bomb. The police arrived and the informant returned and found that his house and the house of some Harijans were gutted in the alleged arson. He claims to have met co-villagers Mustafa, Md. Yasim and Md. Nizam who gave out that the accused Govind Mahto, Nathuni Chaudhary, Raghu Chaudhary, Kishori Chaudhary, Bhola Chaudhary, Natulia Chaudhary alias Sudheshwar Chaudhary, Bandh Chaudhary, Janki Chaudhary, Indradeo Yadav, Dhanpati Chaudhary, Rajendra Chaudhary, Lala Thakur, Bhipat Thakur and 10-15 others had come to the Kabristan variously armed with lethal weapons including bombs and they had stacked pual. A huge crowd from both sides had gathered and Kailash Yadav, Durga Rajak, Lal Dhari Chaudhary, Ram Swaroop Chaudhary, Ram Bilash Yadav and some other persons indulged in abuse and brick batting. The Mohammedans has also gathered and had resorted to brick batting the crowd. The other side is also said to have exploded bombs and fire from pistols and subsequently the informants house was set on fire. It was also alleged that some Harijans also set fire to their own houses to save their skin from a case which could likely be filed against them. 3. The other side is also said to have exploded bombs and fire from pistols and subsequently the informants house was set on fire. It was also alleged that some Harijans also set fire to their own houses to save their skin from a case which could likely be filed against them. 3. On the basis of the said fard beyan Chanduti P.S. Case No.2 of 1986 was registered under sections 147, 148, 149, 452, 323, 337, 338, 307, 436 of I.P.C., 27 Arms Act and 3/5 of Explosive Substance Act against the 18 F.I.R. named accused and 5-10 unknown others. 4. After due investigation the police submitted a chargesheet and after commitment to the court of Sessions various charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried. The further defence as can be culled out through the suggestions to the witnesses is of false implication and that the Mohammedans of the village were unnecessarily claiming the Gairmajarua lands to be used as Kabristan and this led to scuffle in which two Harijans (sic) were set on fire, and bombs and firearms were freely used by the Mohammedans. 5. Assailing the impugned Judgment the learned counsel for the appellants submitted that the impugned Judgment was perfunctory and no cogent reason had been assigned which could satisfy the conviction of the various appellants under various charges. In this connection it was sought to be pointed out that although a charge under sec. 452 of I.P.C. was framed against accused Durga Rajak (since deceased) and Kailash Yadav yet Kailash Yadav had been convicted under section 448 of I.P.C. without framing any charge under that section and that too when section 448 of I.P.C. could not be said to be a lesser offence of sec. 452 of I.P.C. It was also submitted that no offence of section 436 of I.P.C. could be said to have been made out since the P.O. had not been proved and the I.O. had not mentioned anything in course of his evidence of having recovered and seized any burnt materials from the P.O. or having seen any portion of the house of Bankey Mian having been burnt. On this premises it was sought to be submitted that when the P.O. itself is not definite since it is also the P.O. of counter Case No.1 of 1986 then all allegations so far as the appellants are concerned are non est, more so when the value of the alleged damage or mischief alleged to have been caused by fire had not been stated or claimed by the prosecution. 6. The prosecution witnesses apart from making passing reference have not stated assertively of any one having set fire to the house of Bankey Mian, the informant who himself is not an eye witness to the occurrence and it would appear that the evidence had been modulated for the deliberate purpose of securing a conviction as the witnesses improved upon the F.I.R. version. The witnesses were neither wholly reliable, nor assertive nor did assert in any categorical terms regarding the overt act by Kailash Yadav in setting fire to the residence of the informant. 7. Similarly the witnesses are not definite and assertive as to who trespassed into the house of Bankey Mian and with what intention. As a matter of fact, when mens rea for the criminal trespass has not been established sec. 448 I.P.C. does not come into play and no conviction thereunder can be ordered. 8. The learned counsel for the appellants next sought to submit that as there was an absence of common object, therefore, no offence either under sec. 147 or 148 I.P.C. can be said to have been made out against (any of the accused. It was sought to be submitted that mere assembly of persons is not an unlawful assembly and, therefore, conviction for rioting cannot be sustained unless it is proved that there was an unlawful assembly. 9. I am not ready to accept this proposition since the members of the unlawful assembly were variously armed with lathi and garansa. Had there been no formation of common object what led the members of the assembly to be variously armed with various lethal weapons. To my mind there is sufficient evidence on record to make out a case under sections 147 and 148 of I.P.C. and, accordingly, I uphold the conviction of the different appellants thereunder. Had there been no formation of common object what led the members of the assembly to be variously armed with various lethal weapons. To my mind there is sufficient evidence on record to make out a case under sections 147 and 148 of I.P.C. and, accordingly, I uphold the conviction of the different appellants thereunder. Admittedly hurling of abuses and brick bats were resorted to by both sides and it could not be said as to who were the aggressors and who the recipients, in the facts and circumstances of the case, I am of the opinion, that an offence under sections 147 and 148 of I.P.C. as attributed to the various appellants herein has to be sustained and cannot be interfered with. 10. In the result, the appeal is allowed in part and whereas the conviction of Ram Bilash Yadav under sec. 436 of I.P.C. and of Kailash Yadav under sec. 448 of I.P.C. is concerned they are acquitted of the charges under sections 436 and 448 of I.P.C. respectively, but the conviction, of Kailash Yadav, Laldhari Chaudhary and Ram Swaroop Chaudhary under sec. 148 of I.P.C. and the remaining others under sec. 147 of I.P.C. are confirmed. 11. Admittedly, the case was instituted in the year 1986 and almost 21 years have passed since then during which period the appellants have had to suffer both physically and mentally and there has also been presumably drain of their financial resources. In the circumstance, no useful purpose would be served by asking the appellants to go back to serve out the remaining part of the sentence. It would only be expedient in the interest of justice to modify the sentence to the period already undergone and I accordingly order for modification in the sentence to the period undergone. 12. In the result the appeal is allowed in part to the extent indicated above subject to the modification in sentence as mentioned. The appellants are on bail. They are discharged from the liabilities of their respective bail bonds.